2nd District disagrees with AG opinions regarding “rubber-stamping” committee action under TOMA.
Tarrant Regional Water District v. Monty Bennett, 02-13-00354-CV (Tex. App. – Fort Worth, November 26, 2014).
This is a Texas Open Meetings Act (“TOMA”) case which rejects several Attorney General opinions holding that a violation of TOMA can occur due to rubber-stamping, at least with regards to water districts.
Bennett is a property owner who brought suit to invalidate several decisions by the Water District regarding a pipeline project. He asserted while the District met in open session, all the deliberations regarding the project occurred in committees which did not compose of a quorum of board members. He asserts the board simply “rubber-stamped” the committee’s decisions and therefore violated TOMA. The District asserted in its plea to the jurisdiction its committees are not made up of a quorum and additionally, the legislature specifically noted water district committees need not comply. Further, Bennett’s claims are ones which deal with his property and he was improperly using TOMA to circumvent immunity. The trial court denied the plea and the District appealed.
The court first noted that Tex. Water Code Ann. §§ 49.051, .053 state a water district must comply with TOMA, but that a committee of less than a quorum need not. The court noted that the Water Code’s exception is consistent with TOMA as the Act defines a meeting as a deliberation of a quorum. While the opinion talks a great deal about the Water Code, its reasoning and language can still apply to TOMA generally. Bennett argued numerous AG opinions stating that members of less than a quorum can still violate TOMA by rubberstamping. The court disagreed holding to declare otherwise “effectively renders meaningless” the legislature’s definition of “meeting” which has a quorum requirement. While agreeing TOMA is to be liberally constructed, the court held “[h]owever, liberally construing TOMA does not mean shelving well-established rules of statutory construction to achieve a particular result that is patently inconsistent with the literal terms of the statute.” Essentially, TOMA does not say an exception to the quorum requirement exists if rubberstamping occurs, so it is not an exception. [Comment: be warned that the AG and challengers may attempt to distance this case from city council meetings by arguing the Water Code has a specific provision applying to committees. However, the reasoning and language can be applied generally, regardless of a comparable provision. It is just not as clear cut.]
The dissent disagreed arguing that allowing committees of less than a quorum to act without public meetings seems improper under TOMA. [Comment: I did like majority’s footnote #2 which essentially held that a multi-billion dollar project with complex engineering and analysis is illogical to be run solely at the Board level. While the ultimate decisions occur at the board level, committees serve important logistic purposes which cannot be ignored and TOMA recognizes that.]