Item3B_ICRC 2021-TOMA (Presentation) — original pdf

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ICRC Texas Open Meetings Act August 18, 2021 • WHAT IT IS: TOMA is a statute (enacted to benefit the public rather than governing bodies) that mandates open public access to all non-excepted meetings • WHERE IT IS: of governmental bodies. Codified in Texas Government Code, Chapter 551. • WHAT IT SAYS: Requires that every meeting of a subject body, with certain narrow enumerated exceptions, be ▪ ▪ ▪ open to the public, and posted as to notice of time, place, and subject matter of items to be discussed, and memorialized with a record. • Open to the Public:    Must allow each member of the public who desires to speak to do so during or before consideration of an item May adopt reasonable rules Cannot prohibit public criticism • Meeting Notice (Agenda): Must be posted ▪ ▪ ▪ Minimum of 72 hour notice posted as to notice of time, place, and subject matter of items to be discussed, and memorialized with a record (Standard practice: audio or video recording and minutes reflecting members attendance and action taken). What is a QUORUM? • DEFINITION: TOMA = Allows the City Charter to set the number for a quorum. Charter = For the ICRC, a quorum is 9 members. • POSTING REQUIRED: If a quorum is going to be present at anything other than a purely social or ceremonial function, a meeting notice must be posted. What is a MEETING? • DEFINITION: ▪ “ A verbal exchange among a quorum of the body ... verbal” also means “non-verbal” texts or emails or interactions. … or between a member of the public, or staff, and a quorum of the body … … during which at least one member of the body is participating in a deliberation of public business over which the body has had, has, or will have control. Meeting? Maybe, if social turns to business. CLOSED MEETING/EXECUTIVE SESSION • • • Convene in Open Session Announce Executive Session and Applicable Section(s) of TOMA Very Specific List of Allowable executive sessions Exceptions (Most Common) • • • 551.071 – Consultation with Attorney 551.074 – Personnel Issues – posting should identify high-level personnel 551.076 – Deliberation Regarding Security Devices or Security Audits “Walking Quorum” Prohibited Series of Communications: A member of a governmental body commits an offense if the • member: • • knowingly engages in at least one communication among a series of communications that each occur outside of a public meeting; and that concern an issue within the jurisdiction of the governmental body; and the members engaging in the individual but the members engaging in the series of communications constitute fewer than a quorum, communications constitute a quorum; and • Knowing Conduct Required: • Walking Quorum The member knew at the time the member engaged in the communication • that the series of communications: • involved or would involve a quorum; and would constitute a deliberation once a quorum of members engaged in the series of communications. Walking Quorum • • • A quorum does not have to be in the same place at the same time. Sequential contacts, and cumulative contacts, can add up to a quorum. Communications on social media could constitute a walking quorum Complaints alleging walking quorums are prosecuted by county attorneys, district attorneys, and criminal district attorneys, and the AG can assist in criminal prosecution. How to Avoid Walking Quorum • • • • Stay aware of with whom you have discussed commission business. Remember that social media is subject to walking quorum considerations. Keep quorum discussion and decision making entirely within posted meetings. Use your Working Groups Penalties for TOMA Violations • • • • Actions of the body can be voided, via lawsuit. Lawsuits can be brought to force compliance. Attorneys fees can be assessed. Calling, or aiding in calling, or participating in a meeting in violation of TOMA carries Class C misdemeanor penalties. TOMA and PIA Training • • • Texas Government Code §551.005 sets forth requirements for certain public officials for • training. The Texas Attorney General’s Office (OAG) provides free video training courses that comply with this requirement. Link: https://www.texasattorneygeneral.gov/og/open- government-training An online Course Completion Certificate is available at the OAG website, and can be filed with the City Clerk. Other Resources • • • • https://www.texasattorneygeneral.gov/sites/default/files/fi AG’s Open Meetings Handbook: les/divisions/open-government/openmeetings_hb.pdf https://www.texasattorneygeneral.gov/sites/default/files/fi AG’s PIA Handbook: les/divisions/open-government/publicinfo_hb.pdf https://www.tml.org/DocumentCenter/View/1332/The- TML’s TOMA Made Easy: Texas-Open-Meetings-Act-Made-Easy-2019--Final https://www.tml.org/DocumentCenter/View/1834/Texas- TML’s PIA Made Easy: Public-Information-Act-Made-Easy---2020-PDF Questions? Direct any questions to ICRC Outside Counsel, David Richards