Memorandum

CONFIDENTIAL
/ CLIENT ATTORNEY PRIVILEGED AND PRODUCT ATTORNEYWORK

DO NOTDISCLOSE
DArE March 6,2014 ro The Honorable Mayor and Members of the City Council

CITY OF DALI-AS

City Council Taking Straw Votes During ExecutiveSession suBrEcr

questions aboutcity council Griggsand othersrecentlyaskedsomeimportant Councilmember as receive the responses, council to the city for would be helpful that it meetings.We agreed Please let me know if you haveanyquestions. attached.

WARRENM. S. ERN City Attorney Attachment

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Memorandum DATE TO March 4,20t4 The HonorableScott Griggs,City Councilmember

CITY OF DALLAS

SUBJECT Taking A Straw Vote and Other AgreementsBetween CouncilmembersDuring ExecutiveSession

This respondsto your questionsregardingthe city council taking straw votes during executive session,gving instructionsto the city attomey during executivesession,and councilmembers during opensessions. not to raiseconcerns agreeing in executivesession Brief Answers City councilmemberscan discusstheir views in executive session,but taking straw votes or on an issuethat will be voted on in open otherwiseattemptingto countvotes in executivesession Open MeetingsAct. Taking a straw vote on a violation the Texas can be viewed as of session issuesregardinglegal strategyand instructionsto the city attomey are permissiblein executive session because thesevotes are coveredby attorney-clientconfidentiality and will not be final in executive voted on in open session. Agreementsbetween city councilmernbers decisions sessionnot to discussconcemsin open sessionare not council actions and do not violate the Texas Open Meetings Act, but they are also not binding on the city council or individual councilmembers. Discussion 1. Straw Votes.

The core purposeof the Texas Open Meetings Act,is "to enablepublic accessto and increase public knowledge of governmentdecisionmaking."' As such, the Texas Open Meetings Act provides:"A final action, decision,or vote on a matter deliberatedin a closedmeeting . . . may only be made in an open meeting that is held in compliancewith the notice provisions of this chapter."2 The Attorney General'sOffice has opined that govemmentalbodies should not take

(Tex. l99l). City of SanAntonio v. Fourth Ct. of Appeals,820 S.W.2d'762,765 (Vernon2014). Tex. Gov'TCoDEANN.$ 551.102

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straw votes or otherwise attempt to count votes during an executive session.3 This does not their are prohibited from expressing meanthat while in executive sessioncity councilmembers In in session.' they are back open to vote once opinion (without deliberation)or how they intend addition, in certain circumstances,a governmentalbody may make a decision in executive sessionthat will not be considereda "final action, decision,or vote" that must be taken in an held that a schoolboard did not take a "final action" opensession.The court in Cox Enterpruses when it discussed making public the names and qualifications of the candidates for selling surplusproperty and instructedthe administrationto or when it discussed superintendent solicit bids. The court concluded that the board was simply announcingthe law would be followed, rather than taking any action, in decidingto make the namesand qualificationsof the public. The court also noted that further action would be required before the board candidates could decideto sell the surplusproperfy;therefore,the inskuction to solicit bids was not a "final however, and then merely reporting that action."5Making a final decision in executivesession, thwartsthe purpose decision,or reporting a formal unanimousfront, to the public in open session a final decisionmadein as stamping of the TexasOpen Meetings Act and can be viewed rubber executive session.6

oF rHE ATToRNEY GmrnnI- 2014 Texes OprN Meernqcs HANDBooK39(2014). OFFTCE v. Bass,366S.W.3d751,762 (Tex. App.-Austin 2012,no pet,) Texas StateBoard of Public Accountqncy (quotingBoard of Trustees of the Austin Indep. Sch.Dist. v. Cox Enters.,[nc.,679 S.W.2d 86, 89-90 (Tex. S,W.2d956(Tex. 1986))CTOMA'doesnotprohibit L984),rev'donothergrounds,To6 App.-Texarkana their opinions on an issueor announcinghow from expressing session members in an executive Board] [the they expectto vote on the issue in the open meeting, so long as the actual vote or decision is made in the must establish open session.'. . . Thus to establishthat the Board's ordersviolated the Act, the accountants that 'the actual vote or decision' to adopt the orderswas not made in open session."); Weatherfordv. City of San Marcos, 157 S.W.3d473,486 (Tex. App.-Austin 2004, pet. denied)("[E]ven if opinions were expressedby Councilmembersin the closed session,such expressionis not prohibited, as long as the decisionor vote was madein an open session,"). S.W.2dat 89-90. CoxEnterprises,6T9 Cox Enterprises, 679 S.W.2d at 89-90 (Taking a straw vote to see how the board was leaning in the selectionof a board presidentand then voting to unanimously elect the winner of the straw vote in open sessionheld to be an actual resolution of the issue in executive sessionin violation of the Act). But see Nash v. Civil Sen. Comm'n,864 S.W,2d 163, 166 (Tex. App.-Tyler 1993,no writ) ("In the instantcase, while it appearcthat the Commission had reacheda tentative decision in executive sessionand that the tentativedecision was announcedin open session,each of the three commissionershad the oppornrnity to Commissioners. . . declined commenton the caseand cast a vote contrary to that decision, Nevertheless, by to comment further on their decision or vote contrarily, and they consentedto the vote as expressed [another commissioner]. This case will not be reversed on the fine distinction between the voting requirementsof Section 143.053(d)and the procedurefollowed by the Commission here. We hold there compliance[with the Act]"). was substantial

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CONFIDENTIAL ATTORNEY/CLIENT PRIVILEGED DO NOT DISCLOSE 2, Session. Instructionsto Attorney in Executive

session.T legal advicefrom the city attomeyin executive The city council may seekconfidential privilege and attorney-client This exceptionto the open meetingsrequirementincorporates the provisionof legal between the city councilandthe city attomeyregarding allowsdiscussions services.8 The city council may by straw vote in executivesessiongive the city attorney a final decision. For as long as the vote doesnot constitute directionconceminglegal strategies the city council could direct the city attomeyto follow a certain example,in executivesession doing so would not be a final strategyin negotiatinga contractor litigating a casebecause decisionof the city council; ratherthe city council would be consultingwith the city attomey the city councilshouldonly approve matters. In contrast, concerning confidential attorney-client a final decisionof the city because this constitutes in opensession, a contractor final settlement comrnunication. attomev-client councilanddoesnot involve a confidential 3. in Open Sessions. Agreements Not to RaiseConcerns

made during an executivesessionnot to raise An agreement between city councilmembers is not a council action and thereforedoes not violate the Texas concerns during open session above, a body,eand, exceptas discussed OpenMeetingsAct. The city councilmay only act-as reached may only act as a body during an open meeting.ru This meansthat any agreement during an executivesessionis not binding on the city council or betweencouncilmembers individualcouncilmembers.

URGESS Assistant City Attorney

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( v e m o n2 0 1 4 ) . T E x .c o v ' r C o D E A N N .$ 5 5 1 . 0 7 1 TexasStoteBoard of Public Accountancy,366S.W.3dat759;Olympic l(aste Servicesv. City of Grand Saline,204 S.W.3d 496, 502 (Tex. App.*Tyler 2006, no pet.);Markowskiv. City of Marlin,940 S.W.2d (Tex.App.-Waco 1997, no writ). 720,726-727 of Cily of Austin,644 S.W.2d560, 564 (Tex. Cottnci| Inc. v. Board of Adjustment Austin Neighborhoods Co.,l66 S,W.2d75,76v. Texas & Pac.Motor Transport App.-Austin 1982,writ refd n.r.e.);ll/ebsler (Tex.Civ. App.-Waco 1939, writ dism'd 975,9'7'7 ?7 (Tex. 1942); McAlisterv.City of Frost,l3l S.W.2d judgm't cor.). (Vemon 2014). ANN. TEX. Gov'r CoDE $ 5 51 . 0 0 2

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c:

WanenErnst,City Attorney City Attomey ChrisBowers, FirstAssistant Ileana Assistant City Attomey Femandez, City Attomey JohnRogers, Assistant Assistant City Attomey Art Hudman, City Attomey RobertSims, Assistant Assistant City Attorney TammyPalomino,

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