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City Council Taking Straw Votes During Executive Session Memo

City Council Taking Straw Votes During Executive Session Memo

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Published by Tod Robberson
Memo from Dallas City Attorney warning of legal limits to closed-door sessions.
Memo from Dallas City Attorney warning of legal limits to closed-door sessions.

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Categories:Types, Legal forms
Published by: Tod Robberson on Mar 14, 2014
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03/18/2014

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Memorandum
CONFIDENTIAL
ATTORNEY CLIENTPRIVILEGEDANDATTORNEYWORK RODUCT
DO NOT DISCLOSE
CITY OF DALI-AS
DArE March 6,2014ro The Honorable Mayor and Members of the City CouncilsuBrEcr ity Council Taking Straw Votes During Executive Session
Councilmember riggs and others ecently asked ome mportant uestions bout city councilmeetings. We agreed hat t would be helpful or the city council o receive he responses, sattached. lease et me know f you have any questions.WARREN M. S. ERNCity AttorneyAttachment
"Dallas - Together, we do it better "
 
CONFIDENTIALATTORNEY/CLIENTPRIVILEGEDDO NOT DISCLOSE
Memorandum
CITY OF DALLAS
DATE March 4,20t4TO The Honorable Scott Griggs, City CouncilmemberSUBJECT Taking A Straw Vote and Other Agreements Between Councilmembers DuringExecutive SessionThis responds o your questions egarding he city council taking straw votes during executivesession, ving instructions o the city attomey during executive session, and councilmembersagreeing n executive session ot to raise concerns uring open sessions.Brief AnswersCity councilmembers an discuss heir views in executive session, but taking straw votes orotherwise attempting o count votes n executive session n an ssue hat will be voted on in opensession an be viewed as a violation of the Texas Open Meetings Act. Taking a straw vote onissues egarding egal strategy and instructions o the city attomey are permissible n executivesession ecause hese votes are covered by attorney-client confidentiality and will not be finaldecisions voted on in open session. Agreements between city councilmernbers n executivesession not to discuss concems n open session are not council actions and do not violate theTexas Open Meetings Act, but they are also not binding on the city council or individualcouncilmembers.Discussion1. Straw Votes.The core purpose of the Texas Open Meetings Act,is "to enable public access o and increasepublic knowledge of government decisionmaking."' As such, the Texas Open Meetings Actprovides: A final action, decision, or vote on a matter deliberated n a closed meeting . . . mayonly be made n an open meeting hat is held in compliance with the notice provisions of thischapter."2 The Attorney General's Office has opined hat govemmental bodies should not take
City of San Antonio v. Fourth Ct. of Appeals, 20 S.W.2d'762,765 Tex. 99l).Tex. Gov'TCoDEANN. $ 551.102 Vernon 2014).
"Dallas - Together, we do it better "
 
CONFIDENTIALATTORNEY/CLIENTPRIVILEGEDDO NOT DISCLOSE
straw votes or otherwise attempt to count votes during an executive session.3 This does notmean hat while in executive session city councilmembers re prohibited from expressing heiropinion (without deliberation) or how they intend o vote once hey are back n open session.' Inaddition, in certain circumstances, a governmental body may make a decision in executivesession hat will not be considered a "final action, decision, or vote" that must be taken in anopen session. The court n Cox Enterpruses eld that a school board did not take a "final action"when it discussed making public the names and qualifications of the candidates forsuperintendent r when it discussed elling surplus property and nstructed he administration osolicit bids. The court concluded hat the board was simply announcing he law would befollowed, rather han taking any action, n deciding o make the names and qualifications of thecandidates ublic. The court also noted that further action would be required before the boardcould decide o sell the surplus properfy; herefore, he inskuction to solicit bids was not a "finalaction."5 Making a final decision n executive session, owever, and then merely reporting thatdecision, or reporting a formal unanimous ront, to the public in open session hwarts he purposeof the Texas Open Meetings Act and can be viewed as rubber stamping a final decision made nexecutive ession.6
OFFTCE F rHE ATToRNEY GmrnnI- 2014 Texes OprN Meernqcs HANDBooK39 2014).Texas State Board of Public Accountqncy . Bass,366 S.W.3d 751,762 (Tex. App.-Austin 2012, no pet,)(quoting Board of Trustees f the Austin Indep. Sch. Dist. v. Cox Enters., nc.,679 S.W.2d 86, 89-90 (Tex.App.-Texarkana L984),rev'donothergrounds,To6 S,W.2d956 Tex. 1986)) CTOMA'doesnotprohibit[the Board] members n an executive session rom expressing heir opinions on an issue or announcing howthey expect o vote on the issue n the open meeting, so long as the actual vote or decision s made n theopen session.' . . Thus to establish hat the Board's orders violated he Act, the accountants must establishthat 'the actual vote or decision' to adopt the orders was not made n open session."); Weatherford v. Cityof San Marcos, 157 S.W.3d 473,486 (Tex. App.-Austin 2004, pet. denied) "[E]ven if opinions wereexpressed y Councilmembers n the closed session, such expression s not prohibited, as long as thedecision or vote was made n an open session,").Cox Enterprises,6T9 .W.2d at 89-90.Cox Enterprises, 679 S.W.2d at 89-90 (Taking a straw vote to see how the board was leaning in theselection of a board president and then voting to unanimously elect the winner of the straw vote in opensession held to be an actual resolution of the issue n executive session n violation of the Act). But seeNash v. Civil Sen. Comm'n,864 S.W,2d 163, 166 Tex. App.-Tyler 1993, no writ) ("In the nstant ase,while it appearc hat the Commission had reached a tentative decision n executive session and that thetentative decision was announced n open session, each of the three commissioners ad the oppornrnity ocomment on the case and cast a vote contrary o that decision, Nevertheless, Commissioners . . declinedto comment urther on their decision or vote contrarily, and they consented o the vote as expressed y[another commissioner]. This case will not be reversed on the fine distinction between the votingrequirements f Section 143.053(d) and the procedure ollowed by the Commission here. We hold therewas substantial ompliance with the Act]").
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