The Texas Court of Appeals for the 14th District, Houston, issued its opinion in In Re City of Galveston on March 3, 2015. The opinion addressed the scope of what can be discussed in an executive session closed to obtain legal advice under Texas Government Code Open Meetings Law.
Before getting into the holding in In Re City of Galveston, let's note that a Texas governmental body must either tape record their properly called closed meeting, or create a "certified agenda." A certified agenda must summarize what was discussed on each topic; but need not be a verbatim transcript. However, there is an exception for a private consultation with the governmental body's attorney; neither a recording nor a certified agenda is required.
Because there was a full recording of this Galveston closed session (again, this is not required under Texas Open Government law), the appellate court first held that it had the right to hear the recording. The court ruled that listening to the recording was necessary to decide whether the trial court had erred in ordering the release of the recording of the closed session. Because the underlying facts were the recording, the court ruled that it was not substituting its judgment as a fact finder for that of the trial court.
After listening to the recording, the Court noted that a little bit of back and forth discussion is ok to allow the lawyer to understand the issue and give better legal advice. That part of the recording was thus exempt from disclosure under the Attorney Client privilege.
But, at some point, someone in the meeting must have gone "too far" in the "ears" of the Court of Appeals. The Court held that a portion of the recorded discussion exceeded what was necessary for legal analysis and advice. They may have found the discussion had ventured into policy issues, a no-no for closed session legal. As a result, they decided the requestor was entitled to parts of the recording.
This case suggests several planning elements to consider when going into a closed session.
First, if you don't need to record a closed session but must only maintain a certified agenda, decide what benefit or detriment there may be to recording the meeting. (Had there been no recording, would this case have ever arisen?)
Next, proceed carefully in all closed session discussions, so that you can, in addition to obtaining or providing the requisite legal advice, also keep an eye on the "stripes in the pavement", that is note when the discussion may be about to stray outside the permitted scope of the closed session and avoid doing so.
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