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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