tarpley are 864. the last three digits of the social
TRANSCRIPT
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
address: 2744 Bay Meadow Ct., Farmers Branch, TX 75234. Service of said Respondent as
described above can be effected by personal delivery.
G. Respondent, C-FB ISD on behalf of C-FB ISD Board of Trustees, may be served
with process by serving on BOBBY BURNS, an Individual who is a resident of Texas, in his
capacity as Superintendent of C-FB ISD, and may be served with process at the following
address: 1445 N. Perry Road, Carrollton, TX 75006. Service of said Respondent as described
above can be effected by personal delivery.
III. JURISDICTION AND VENUE
A. The subject matter in controversy is within the jurisdictional limits of this court.
B. This court has jurisdiction over the parties because Respondents are Texas
residents.
C. Venue in DALLAS County is proper in this cause under Section 15.002(a)(3) of
the Texas Civil Practice and Remedies Code because this county is the county of the principal
office of C-FB ISD Board of Trustees, Respondent herein. Furthermore, because venue is proper
with respect to Respondent C-FB ISD Board of Trustees, venue for this action with respect to all
Respondents is proper under 15.005 of the Texas Civil Practice and Remedies Code.
D. Section 551.142 of the Open Meetings Act confers jurisdiction on this, the
District Court, over actions seeking mandamus or injunction to stop, prevent, or reverse
violations or threatened violations under the Texas Open Meetings Act (referred to as TOMA
or the Act)thereby waiving sovereign immunity to this type of lawsuit and its request for
attorney fees. Tex. Govt Code Ann. (Vernon 2004).
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
E. This, the District Court, also has jurisdiction under Article 5, section 8 of the
Texas Constitution, and may issue declarations under the Uniform Declaratory Judgment Act
(UDJA), Tex. Civ. Prac. & Rem. Code Ann., 37.001 et seq. (Vernon 1997).
IV. STANDING
Texas Government Code 551.142(a) provides, An interested person, including a
member of the news media, may bring an action by mandamus or injunction to stop, prevent, or
reverse a violation or threatened violation of this chapter by members of a governmental body.
Tex. Govt Code Ann. 551.142 (Vernon 2004). The standing conferred by Texas Government
Code 551.142 is broader than taxpayer standing, and its citizens do not need to prove an
interest different from the general public because the interest protected in the Open Meetings
Act is in the interest of the general public. Hays County Water Planning Pship v. Hays
County, 41 S.W.3d 174, 177-8 (Tex. App.Austin 2001, pet. Denied).
An individual entitled to seek a writ of mandamus or injunction may also seek a
declaratory judgment pursuant to the Uniform Declaratory Judgment Act, chapter 37 of the
Texas Civil Practice and Remedies Code. Cox Enters., 679 S.W.2d 86 (Tex.. App.Texarkana
1984) (recognizing news medias right to bring declaratory judgment action to determine if the
board had violated TOMA); See also City of Fort Worth v. Groves, 746 S.W.2d 907 (Tex. App
Fort Worth 1998, no writ) (resident of Arlington had standing to bring suit for declaratory
judgment and injunction against the city for a violation of the Texas Open Meetings Act). A
taxpayer living within the School district has standing to file a suit under 551.142. Salazar v.
Gallardo, 57 S.W.3d 629 (Tex AppCorpus Christi 2001, no pet.). Finally, members of the
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
public have the right to seek relief by mandamus to correct an abuse of discretion and/or to
compel the performance of a ministerial duty by public officials Tex. Govt Code Ann.
551.142
Petitioner, SHIRLEY DEMUS TARPLEY, is a resident living within the tax district for
the Carrollton-Famers Branch Independent School District (hereafter called C-FB ISD; she is a
retired C-FB ISD teacher; she began to work in the C-FB ISD in 1969; and she is a former City
of Carrollton City Council member. SHIRLEY DEMUS TARPLEY strongly believes that the C-
FB ISD Board of Trustees actions result in harm to the children of the district for which she
cares so much about. SHIRLEY DEMUS TARPLEY has standing to file this suit.
V. SUMMARY
The C-FB ISD Board of Trustees has a pattern and practice of violating the notice and
open meeting provisions of the TOMA, as evidenced by the fact that C-FB ISD has continued to
violate the TOMA prior to this suit. SHIRLEY DEMUS TARPLEY seeks a declaratory
judgment under the UDJA that C-FB ISD has violated the TOMA through its past actions.
SHIRLEY DEMUS TARPLEY seeks injunctive relief to prevent C-FB ISD from continuing to
violate the TOMA through these actions.
VI. SUMMARY OF PEOPLE DISCUSSED IN THE FACTS AND THE FACTS
1. Summary of People Discussed in the Statement of Fact
Mr. Robert Luna, Esq.Purported Attorney for Respondent, C-FB ISD Board of Trustees andLynn Chaffin, in Cause No. 09-07085 filed in the 95
thDistrict Court of Dallas County, Texas and
Attorney for Appellant, C-FB ISD Board of Trustees and Lynn Chaffin, in the Texas Court ofAppeals, Dallas Division case assigned Cause No. 05-09-01166-CV
Ms. Lynn ChaffinPresident for C-FB ISD Board of Trustees.
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Ms. Nancy ClineVice President of C-FB ISD Board of Trustees
Mr. Frank ShorSecretary of C-FB ISD Board of Trustees
Ms. Nancy WattenAssistant Secretary of C-FB ISD Board of Trustees
Mr. James Goodemember of C-FB ISD Board of Trustees
Ms. Karin Webbmember of C-FB ISD Board of Trustees
Mr. Richard Flemingmember of C-FB ISD Board of Trustees
Dr. Bobby BurnsSuperintendent of C-FB ISD
Ms. Georgeanne Warnock-Principal of R.L. Turner High School, Carrollton TX
Mr. Mark Gommesena concerned resident living in the C-FB ISD with a child attending a C-
FB ISD school.
2. Statement of the FactsC-FB ISD Board of Trustees is appointed by the voters residing in its school district to
conduct business, develop policy, and make decisions on behalf of the school district regarding
the local education system for the benefit of the children and the community at large residing in
that school district.
On June 25,, 2009 at a Regular Board Meeting of the Carrollton-Farmers Branch
Independent School District (C-FB ISD), where a quorum of board members were present and
seated. Then Ms. Chaffin proceeded to adjourn the open meeting and announced they would
reconvene in closed session. The presiding officer did not identify the section or sections under
which they were closing the meeting. Ms. Chaffins exact words were, Anything else, alright,
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we do have items for closed session, it is 9:38, I am going to adjourn the meeting at 9:38 and we
will come back at 9:45 in closed session. Ms. Chaffin then adjourned the meeting.
On June 25, 2009, at a Regular Board Meeting of the Carrollton-Farmers Branch
Independent School District (C-FB ISD ), where are quorum of board members were present
and seated, the board reconvened from executive session after the failure of a vote to call a
special election James Goode stated as follows:
I believe we have one other item based upon closedsession, and that is that I would like to make a motion that we
approve all the matters that we discussed in close session that weneed to take future action on.
Nancy Watten seconded the Motion. Lynn Chaffin called the Motion and the Motion was
passed. Three items were discussed in closed session. There is no designation as to which item
or itemsone of the three, two of the three, or all of themwere actually designated as items
(quoting James Goode) that that we [the board] need to take future action on.
On August 13, 2009 at Regular Meeting of the Board of Trustees, where are quorum of
board members were present and seated, the presiding officer asked for any comments from
board members. Then Ms. Chaffin proceeded to adjourn the open meeting and announced they
would reconvene in closed session. The presiding officer did not identify the section or sections
under which they were closing the meeting. Ms. Chaffins statement was,
Um Item Number, Number 6, comments from board members
regarding posted agenda items. Board members? Hearing noneseeing none, item number 7 closed meeting as authorized under the
Texas Government Code including but not limited to, to uh,551.071 Consultation with Attorney; 551.072 Real Property;
551.074 Personnel Matters; 551.076 Security Devices; 551.082School Children/District Employees/Disciplinary Matter or
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Complaint; 551.0821 - Personally Identifiable StudentInformation; 551.084 Investigation.We will now leave closed
session and go into or leave open session and go into closedsession for items a, b and c. We are adjourned from open session
at 11:32. You guys get to leave; lucky you.
The Agenda for the closed session states:
A. Consider All Matters Related to Purchase, Exchange,Lease, or Value of Real Property
B. Consider All Matters Related to Cause Number 09-
07085, Richard Fleming v. Carrollton-Farmers Branch independentSchool District and Lynn Chaffin, Presiding Officer, 95
thJudicial
District Court, Dallas County (Texas Government Code 551.071 Consultation With Attorney)
C. Report From Attorney
The August 13, 2009 Regular Meeting of the Board of Trustees, notice of meeting and
agenda item for the closed session only states Report from Attorney. There was no designation
as to what the attorney was reporting on. This deviates from the school districts prior practices
of at least designating the case or topic for discussion when acting in close session. The C-FB
ISD conducted the meeting, where a quorum of board members were present and seated, and
received a report from an unidentified attorney in closed sessions. Because the report was made
in closed session, the public still does not have an understanding as to which attorney
communicated the report and the public still does not have a clear understanding as to the subject
of such report by an unidentified attorney .
On August 27, 2009 the C-FB ISD Board of Trustees sat in quorum and conducted an
opened and closed meeting. The C-FB ISD Board of Trustees discussed the Flemingcase in
closed session. August 27th
2009, Regular Meeting of the Board of Trustees, notice of meeting
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and agenda items do not list any mention of the 95th
District Court Case Number 09-07085.
There was no supplemental agenda item placed on the agenda such that this information could be
discussed. However, in a subsequent Freedom of Information Request by Mr. Mark Gommesen,
Mr. Gommesen received documentation which reveals that board member Karin Webb posed a
question as to why such litigation was not on the agenda with a reply by Mr. Mark Hyatt. Mr.
Hyatt stated, At this time there is no apparent action that is required. Any new information
related to the lawsuit may be presented to the Board under the closed meeting agenda item.
The Board discussed theFlemingCase at this meeting; however, no such item was listed on the
Agenda. Most importantly, it should be noted that the C-FB ISD Board of Trustees attorney
was not seen at the school board meeting or through the windows during the closed session.
At the August 272009 Regular Board Meeting of C-FB ISD, where the board sat in
quorum, Lynn Chaffin asked for comments from board members, following that section of the
agenda, Chaffin stated,
We will close the regular board meeting and we will go into
closed meeting as authorized by Texas Government Code toSection 551.071 Consultation with Attorney; 551.072 RealProperty; 551.074 Personnel Matters; 551.076 Security Devices;
551.082 School Children/District Employees/Disciplinary Matteror Complaint; 551.0821 - Personally Identifiable Student
Information; 551.084 Investigation. So I will declare this regularmeeting to be closed at 10:06 and we will reconvene in 5 minutes
in closed session.
At no time did Ms. Chaffin specify which exception the meeting was allowing the board to close
the meeting.
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At the September 10, 2009 Regular Board Meeting of C-FB ISD, while the board sat in
quorum, Lynn Chaffin stated as follows:
Okay in that case we are going to adjourn the openmeeting and go into closed session as authorized by the Texas
Government Code 551. Um, So I will adjourn this meeting at8:57 and we will reconvene in 10 minutes.
At no time did Ms. Chaffin specify which exceptions to the Open Meetings Act allowed them to
close the open meeting.
At the September 24,2009 Special Board Meeting of C-FB ISD, while the board sat in
quorum, Lynn Chaffin stated
Um that said we will move on to our agenda item, our firstagenda item for tonight is a closed meeting to hear a third level
grievance, so we are going to have to ask you all to leave. We areso sorry, but I am going to go ahead and close this open session
and we will reconvene in 5 minutes in closed session.
At no time did Ms. Chaffin specify which exceptions to the Open Meetings Act allowed them to
close the session.
At the October 8,2009 Regular Board Meeting of C-FB ISD, while the board sat in
quorum, Ms. Chaffin stated,
Agenda item 4 which will be closed meeting as authorized underthe Texas Governement Codeincluding but not limited to,
551.071 .071 Consultation with Attorney; 551.072 Real Property;551.074 Personnel Matters; 551.076 Security Devices; 551.082
School Children/District Employees/Disciplinary Matter orComplaint; 551.0821 - Personally Identifiable Student
Information; 551.084 Investigation. So we will go, we willadjourn from open session at 9:06 and we will reconvene in closed
session.
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Ms. Chaffin did not disclose which exceptions allowing a closed meeting were provided for the
meeting to be properly closed.
Reconvening from closed meeting, while the board sat in quorum, Ms. Chaffin disclosed
that the board was in closed session for Real Property (or 551.072) by stating,
Alright, I will reconvene this meeting of the Carrollton FarmersBranch ISD Board of Trustees in open session at 9:35PM on
October the 8th. And Board members we've just been discussingitem 5, (pause) 4 a. all matters related to Real Property is there
anything, any action that needs to be taken at this time? Hearingnone seeing none. Board Members we are going to adjourn public
session at 9:36 and we will go back into closed session in 5minutes."
Again, Ms. Chaffin did not disclose which exceptions allowing a closed meeting were provided
for the meeting to be properly closed.
At the November 12, 2009 Regular Board Meeting of C-FB ISD, the notice and agenda
read,
Counsel Briefing From Henslee Schwartz, LLP, to Include Oral
Report and Update on Legal Matters Regarding Laningham vs. C-FB ISD and Wade vs. C-FB ISD. At the point where Lynn
Chaffin stated, Item 3 Comments from Board Members Hearing none and seeing none, we are going to take a brief recess
and we will reconvene at 8:45 in closed session for agenda itemnumber 4 which is a closed session.
The C-FB ISD Board of Trustee sat in quorum and conducted a meeting. At no point did Ms.
Chaffin publically state the specific sections allowing the board to go into closed session.
During this closed session, the Board discussed the investigation of R. L. Turner High School.
No mention of an investigation of a high school, or more specifically R.L. Turner High School
was mentioned anywhere on the agenda. The investigation at R. L. Turner High School is not in
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any way related to Laningham vs. C-FB ISD and Wade vs. C-FB ISD. Coincidently, Mark
Gommesen received an email from Nancy Watten regarding a Public Information Act request
regarding an unknown investigation and Nancy Watten confirmed the investigation pertained to
Lance Campbell, a former principal of R.L. Turner. At least, one of the board members left the
closed meeting after the board began to discuss this topic due to fear of a possible open meetings
violation.
After the closed session on November 12, 2009, the board reconvened in open session.
Lynn Chaffin asked if there were any items discussed in closed session requiring action. No
members of the board responded. Lynn Chaffin then stated,
Hearing none and seeing none, I would like to make astatement to the public. The board had received an allegation of
issues of impropriety and the board took those allegations veryseriously. We initiated an investigation with an external firm. No
violations of law were identified. No violations of policy wereidentified that rose to the level of a reportable ethical complaint.
However, as a result of this investigation, the board has extensivelyreviewed its policies. And those policies are being reviewed at all
of our campuses to ensure that we have a consistency ofapplication of those policies. So we appreciate the public for, uhm,
having reported those, those issues and those concerns and broughtthem to our attention.
At no time, has the C-FB ISD Board of Trustees publically voted to take action to initiate
an investigation. Additionally, the C-FB ISD Board of Trustees has not provided the public with
enough information to determine the scope and topic of investigation. Lynn Chaffin by her own
statement indicates that the investigation was brought to the C-FB ISD Board of Trustees
attention by the public; however, all discussions and action were taken in closed session. Lynn
Chaffin, by her own statement, indicated there was some wrong committed but according to
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her standards it did rise to an ethical violationthe public has never been informed as to what
the violation is or consists oftherefore, how the public cannot measure honesty and integrity of
the system.
Taxpayer funds paid for the investigation, no public action or agenda has ever been
published on this investigation authorizing the Board of Trustees to take action to initiation the
investigation and hire an outside firm to conduct the investigation. The public, at this time, does
not know the person or persons hired to conduct such investigation. Since there has been no
action to start an investigation or hire counsel to conduct an investigation, there is no proof that
any investigation has actually been conducted. If this investigation in any way relates the R.L
Turner, then the subject of the investigation was initiated to explore purported profound
improprietiesthe extent of which can be determined through, live testimony, discovery and any
in camera1
reviews of certified closed session minutes or recordings.
VII. STATEMENT OF LAW
1. Duties and Authority of the C-FB ISD Board of Trustees
Texas Education Code 11.051 regarding governance of an independent school district
and the number of trustees that may be elected reads as follows: (a) An independent school
district is governed by a board of trustees who, as a body corporate, shall: (1) oversee the
management of the district; and (2) ensure that the superintendent implements and monitors
plans, procedures, programs, and systems to achieve appropriate, clearly defined, and desired
results in the major areas of district operations. (a)(1) Unless authorized by the board, a member
1 Petitioner files contemporaneously with the Petition a Motion to Tender Documents forIn Camera Inspection
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of the board may not, individually, act on behalf of the board. Tex. Educ. Code 11.051
(http://www.statutes.legis.state.tx.us 2009).
The C-FB ISD Board of Trustees internal policy says board members as individuals shall
not exercise authority over the District, its property, or its employees. See C-FB ISD Board of
Trustee Policy BBE(Local). Except for appropriate duties and functions of the Board President,
an individual member may act on behalf of the Board only with the express authorization of the
Board. Id. Without such authorization, no individual member may commit the Board on any
issue. Id. Also, because the Board is a body corporate, members can perform no valid act
except as a body at meetings properly convened and conducted by a board sitting in quorum.
Toyah ISD v. Pecos-Barstow ISD, 466 S.W.2d 377 (Tex. Civ. App.-San Antonio, 1971, no writ);
Buchele v. Woods, 528 S.W.2d 95 (Tex. Civ. App.-Tyler, 1975, no writ) .
Texas Education Code 11.1511(a) describes the specific powers and duties of a school
board, and reads as follows: (a) In addition to powers and duties under Section 11.151 or other
law, the board of trustees of an independent school district has the powers and duties provided by
Subsection (b). Texas Educ. Code 11.1511 (http://www.statutes.legis.state.tx.us 2009).
Texas Education Code 11.1511(b)(5) reads, the board shall adopt a policy to establish a
district- and campus-level planning and decision-making process as required under Section
11.251. 11.1511
Texas Government Code 551.001 subsection (3)(E) indicates that a school board is a
governmental body to which the Act will apply. Tex. Govt Code 551.001
(http://www.statutes.legis.state.tx.us 2009). The board of trustees may act only by majority
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vote of the members present at a meeting, held in compliance with the Texas Open Meets Act
(referred to as TOMA or the Act located in Chapter 551 of the Texas Government Code, at
which a quorum of the board is present and voting. Tex. Govt Code 551.002
(http://www.statutes.legis.state.tx.us 2009).
2. History and General Definition of the Texas Open Meeting Act
Even prior to the passage of the TOMA, Texas Government Code 551.001 et seq., a
collegial entity, with power shared equally between colleagues, could only act as an entity at a
properly noticed meeting, not through its individual members. Webster v. Texas & Pacific Motor
Transport Co., 166 S.W. 2d 75 (Tex. 1942). This principle is still good law 60 years later. See
Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 675 (Tex.App.-Dallas 2002,
pet denied); see also Austin Neighborhoods Council, Inc. v. Board of Adjustment of City of
Austin, 644 S.W.2d 560 (Tex.App.-Austin 1982, writ refused n.r.e.).
With the passage of the TOMA, came the Golden Rule of the Act: all "meetings" held
by "governmental bodies" must be open to the public unless an executive [or closed] session is
expressly permitted. 551.002. A meeting is defined under the TOMA as all "deliberations"
between a quorum of members of a governmental body or between a quorum and any other
person.. 551.001(4). A "deliberation" is a verbal exchange between a governmental body or a
quorum and any other person concerning an issue within the governmental body's jurisdiction or
any public business. Tex. Govt Code 551.001(2). Texas Government Code 551.103(a)
requires a governmental body to keep either a certified agenda or make a tape recording of the
proceedings of each closed meeting, except for when the governmental entity is participating in a
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private consultation permitted under Texas Government Code 551.071 when the governmental
body is consulting with the governmental bodys attorney. Tex. Govt Code 551.103 &
551.071 (http://www.statutes.legis.state.tx.us 2009).
There are numerous Texas Attorney General Opinions regarding TOMA. The U.S.
Supreme Court, has stated that even though most Attorney General opinions are considered
advisory on the courts, they are entitled to careful consideration. Point Isabel Indep. Sch. Dist. v.
Hinojosa, 797 S.W.2d 176,179-81 (Tex. App.-Corpus Christi 1990, writ denied). (citing Harris
County Comm'rs Court v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975);
Commissioners Court of El Paso County v. El Paso County Sheriff's Deputies Ass'n, 620 S.W.2d
900, 902 (Tex.Civ.App.---El Paso 1981, writ ref'd n.r.e.).
3. Notice Requirement of the TOMA
The Texas Government Code 551.041 reads, [a] governmental body shall give written
notice of the date, hour, place, and subject of each meeting held by the governmental body.
Tex. Govt Code 551.041 (http://www.statutes.legis.state.tx.us 2009). That means a
governmental body must give the public notice of the subjects that will be discussed and
considered in an open meeting or a closed session. Cox Enters., Inc. v. Bd ofTrs. Of Austin
Indep. Sch. Dist., 706 S.W.2d 956, 958 (Tex. 1986); Porth v. Morgan, 622 S.W. 2d 470 (Tex.
App.Tyler 1981, writ refd n.r.e). When the notice specifically discloses the subject to be
considered at the upcoming meeting, the statute's notice requirement is met. See Cox Enter., 706
S.W.2d at 959.
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The only way that the general public can monitor its governmental body is by notification
of topics to be discussed in both open and closed sessionsthis is done by way of publishing an
agenda. The courts have ruled that the more important a particular issue is to the community, the
more specific the posted notice in the agenda must be. Id. at 958-59; Point Isabel Indep. Sch.
Dist, 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions of the
Act "are mandatory and are to be liberally construed in favor of open government." City of
Farmers Branch v. Ramos, 235 S.W.3d 462, 467 (Tex. App.-Dallas 2007, no pet.); Cox Enters.,
Inc., 706 S.W.2d at 957. After explaining that notice under the Act "should specifically disclose
the subjects to be considered at the upcoming meeting", the court held that describing agenda
items as litigation when the suit was related to a desegregation lawsuit and personnel when it
pertained to the selection of a new superintendent, "did not provide full and adequate notice,
particularly because the subject slated for discussion was one of special interest to the public."
Cox Enters., Inc. at 959. No judicial decision or attorney general opinion states that a
governmental body must indicate in the notice whether a subject will be discussed in open or
closed session. Tex. Atty Gen. Op. No. JC-0057 (1999) at 6. However, if the notices posted
for a governmental bodys meetings consistently distinguish between subjects for public
deliberation and subjects for executive session deliberation, an abrupt departure from this
practice may raise a question as to the adequacy of the notice. Id.
In Cox, the Texas Supreme Court stated that notice is sufficient as long as a reader is
alerted to the topic for consideration and that the reader need not be alerted to all the
consequences that may flow from such topic up for consideration. Id. at 958. (quoting Lower
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Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex.1975). The
Supreme Court proceeds to state that general notice in certain cases is substantial compliance
with the notice provision of the Act even though the notice may not be as specific as it could be;
but, it cautions that less than full disclosure is not substantial compliance.Id. at 959-960. The
Supreme Court concludes by saying the TOMA is intended to protect publics interest through
knowledge of the workings of its government and the public should not be compelled to resort to
the assistance of Courts to receive assurance that a public body has complied with TOMA
rather a public body should act with such apparent willingness to comply with TOMA that the
public needs no assistance from the Courts.Id. at 960.
The C-FB ISD Board of Trustees own policy posted on its website is as follows:
Agendas for all meetings shall be sufficiently specific to informthe public of the subjects to be deliberated at the meeting, setting
out any special or unusual matters to be considered or any matterin which the public has a particular interest. Deliberations or
actions pertaining to the Superintendent and principals are of particular public interest, and notice of those subjects must be
worded with such clarity that the public will understand what theBoard proposes to discuss or accomplish. Cox Enterprises, Inc. v.
Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex. 1986); Point IsabelIndep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176 (Tex. App.
Corpus Christi 1990, writ denied); Atty. Gen. Ops. M-494 (1969),H-419 (1974), H-662 (1975), H-1045 (1977). See C-FB ISD
Board of Trustee Policy BE (Legal).
The terms employee briefing or staff briefing do not giveadequate notice of the subject matter to be presented to the Board
by employees or staff members. Atty. Gen. Op. JC-169 (2000).Id.
The subject of a report or update by District staff or a member of
the Board must be set out in the notice in a manner that informs areader about the subjects to be addressed. Atty. Gen. Op. GA-668
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(2008). Id.
4. Meeting Must be Open to the Public Unless the Topic Falls Under an Exception
Every regular, special, or called meeting of a governmental body shall be open to the
public, except as provided by this chapter. 551.002. Only certain deliberations may be held in
closed sessions. In Cox, decided by the Supreme Court of Texas, the court held, The Texas
Open Meetings Act requires every regular, special, or called meeting of a governmental body to
be open to the public, with certain narrowly-drawn exceptions. Cox Enters., Inc., 706 S.W.2d at
958. The Supreme Court of Texas in Cox states, The Act's purposes cannot be circumvented
by mere reference to one of the section 2 exceptions.Id. The advance notice given under section
3A(a) should specifically disclose the subjects to be considered at the upcoming meeting. Id. at
959. Finally the Supreme Court of Texas in Cox held, The Act's exceptions, however, do not
extend to any "final action, decision, or vote." Id. The reference to the section 2 exception has
been codified into the current Texas Government Code and is described in detail under
subchapter D of 551 of the Texas Government Code.
Texas Govt Code 551.101 states the requirements for holding a closed session. It
provides: If a closed meeting is allowed under this chapter, a governmental body may not
conduct the closed meeting unless a quorum of the governmental body first convenes in an open
meeting for which notice has been given as provided by this chapter and during which the
presiding officer publicly: (1) announces that a closed meeting will be held; and (2) identifies the
section or sections of this chapter under which the closed meeting is held. Tex. Govt Code
551.101 (http://www.statutes.legis.state.tx.us 2009). A careful and plain reading of the TOMA
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reveals that if a closed meeting is authorized (i.e. an exception applies), the governing body must
comply with the procedural steps enumerated in TOMA. Martinez v. State, 879 S.W.2d 54, 56
(Tex.Crim.App.1994). On the other hand, if one of the exceptions does not apply, then the
closed meeting violates the Act regardless of whether the governing body complied with the
procedural steps. Id. The policy behind the TOMA is that the public should be aware of which
members of a governing body are present in a closed meeting and whether a quorum exists. Id.
Additionally, the presiding officer must identify the section or sections that authorize the closed
session for the following reasons: 1) to cause the governmental body to assess the applicability
of the exceptions before deciding to close the meeting; 2) to fix the governmental bodys legal
position as relying upon the exceptions specified; and 3) to inform those present of the
exceptions, thereby giving them an opportunity to object intelligently. Lone Star Greyhound
Park, Inc. v. Tex. Racing Commn, 863S.W.2d 742, 747 (Tex. App.Austin 1993, writ denied).
However, when judging the sufficiency of the presiding officers announcement in light of
whether it effectuated or hindered the purposes of 551.101, theLone StarCourt found that the
presiding officers reference to the content of a section, rather than to the section number,
sufficiently identified the exception. Id. at 747.
5. Exceptions to the Requirement of Publicly Held Meetings
The Consultation with Attorney exception is located in the Texas Government Code at
551.071. Section 551.071 reads, A governmental body may not conduct a private consultation
with its attorney except: (1) when the governmental body seeks the advice of its attorney about:
(A) pending or contemplated litigation; or (B) a settlement offer; or (2) on a matter in which
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the duty of the attorney to the governmental body under the Texas Disciplinary Rules of
Professional Conduct of the State Bar of Texas clearly conflicts with this chapter. Tex. Govt
Code 551.071 (http://www.statutes.legis.state.tx.us 2009).
This provision allows the attorney to perform his duty to counsel his client while
upholding notions of attorney-client privilege and the attorneys duty to preserve client
confidences. Tex Atty Gen. Op. Nos. JC-0506 (2002) at 4; JC-0233 (2000) at 3; JM-238 (1984)
(as modified by Tex. Atty Gen. Op. No. JC 0506 (2002)); H-816 (1976); M-1261 (1972). It
allows the governmental body to seek the attorneys advice regarding pending or contemplated
litigation or settlement offers. Lone Star Greyhound Park, Inc., 863S.W.2d at 748. However,
General Discussions of policy, unrelated legal matters, is not permitted under the language of
[this exception] merely because an attorney is present Tex. Atty Gen. Op. No. JM-100 (1983)
at 2.
In Cox, the Supreme Court acknowledged that a school board is not expected to
disclose its litigation strategy, but it cannot totally conceal that a pending desegregation lawsuit
will be discussed and the Texas Attorney General John Cornyn opined that even though the
school board discussed the lawsuit in executive session, the school board could not escape
publishing adequate notice as required by the TOMA. See Cox Enters., Inc. at 959.; Tex. Atty
Gen. Op No. JC-0057 (1999). Since a governing body can consult privately with its attorney,
logic dictates that the information discussed at that meeting should be protected by the attorney-
client privilege. Markowski v. City of Marlin, 940 S.W.2d 720, 727 (Tex.App.-Waco 1997,
pet. denied). However, the party asserting the privilege has the burden of proving that the
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attorney-client privilege applies. Id. (citingPeeples v. Hon. Fourth Supreme Judicial Dist., 701
S.W.2d 635, 637 (Tex. 1985) (in the discovery context). Sometimes the only way to prove the
privilege is through an in-camera inspection of the privileged documents or other materials. Id.
at 727) (citing Weisel Enter., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986); Kavanaugh v.
Perkins, 838 S.W.2d 616, 620 (Tex.App.---Dallas 1992, orig. proceeding).
InRamos, the City of Farmers Branch claimed it properly closed the session regarding an
new ordinance and that if it discussed anything outside of the attorney client privilege then it was
merely to state opinions. Ramos 235 S.W.3d at 468. The Court agreed that opinions may be
discussed in closed session. Id. However, the Court also stated,
Ramos alleged that the City, in closed meetings, drafted,deliberated, negotiated, debated, and agreed upon the provisions
of the ordinance and then "negotiated, modified and revised" theordinance to "secure the votes" of appellants. Further, Ramos
alleged that the public vote was no more than a rubberstamp of the"agreement reached in secret." These allegations, if true, suggest
appellants acted outside the lawful bounds of an executive sessionand would constitute more than an expression of opinion.Id.
Other Exceptions cited by the Board include:
DELIBERATION REGARDING REAL PROPERTY; CLOSEDMEETING. A governmental body may conduct a closed meeting
to deliberate the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a
detrimental effect on the position of the governmental body innegotiations with a third person. Tex. Govt Code 551.072
(http://www.statutes.legis.state.tx.us 2009).
PERSONNEL MATTERS; CLOSED MEETING. (a) Thischapter does not require a governmental body to conduct an open
meeting: (1) to deliberate the appointment, employment,evaluation, reassignment, duties, discipline, or dismissal of a
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public officer or employee; or (2) to hear a complaint or chargeagainst an officer or employee. (b) Subsection (a) does not apply
if the officer or employee who is the subject of the deliberation orhearing requests a public hearing. Tex. Govt Code 551.074
(http://www.statutes.legis.state.tx.us 2009).
DELIBERATION REGARDING SECURITY DEVICES ORSECURITY AUDITS; CLOSED MEETING. This chapter does
not require a governmental body to conduct an open meeting todeliberate: (1) the deployment, or specific occasions for
implementation, of security personnel or devices; or (2) a securityaudit. Tex. Govt Code 551.072
(http://www.statutes.legis.state.tx.us 2009).
SCHOOL CHILDREN; SCHOOL DISTRICT EMPLOYEES;DISCIPLINARY MATTER OR COMPLAINT. (a) This chapter
does not require a school board to conduct an open meeting todeliberate in a case: (1) involving discipline of a public school
child; or (2) in which a complaint or charge is brought against anemployee of the school district by another employee and the
complaint or charge directly results in a need for a hearing. (b)Subsection (a) does not apply if an open hearing is requested in
writing by a parent or guardian of the child or by the employeeagainst whom the complaint or charge is brought. Tex. Govt
Code 551.072 (http://www.statutes.legis.state.tx.us 2009).
SCHOOL BOARD: PERSONALLY IDENTIFIABLEINFORMATION ABOUT PUBLIC SCHOOL STUDENT. (a)
This chapter does not require a school board to conduct an openmeeting to deliberate a matter regarding a public school student if
personally identifiable information about the student willnecessarily be revealed by the deliberation. (b) Directory
information about a public school student is considered to bepersonally identifiable information about the student for purposes
of Subsection (a) only if a parent or guardian of the student, or thestudent if the student has attained 18 years of age, has informed the
school board, the school district, or a school in the school districtthat the directory information should not be released without prior
consent. In this subsection, "directory information" has themeaning assigned by the federal Family Educational Rights and
Privacy Act of 1974 (20 U.S.C. Section 1232g), as amended. (c)Subsection (a) does not apply if an open meeting about the matter
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is requested in writing by a parent or guardian of the student or bythe student if the student has attained 18 years of age. Tex. Govt
Code 551.072 (http://www.statutes.legis.state.tx.us 2009).
INVESTIGATION; EXCLUSION OF WITNESS FROM
HEARING. A governmental body that is investigating a mattermay exclude a witness from a hearing during the examination ofanother witness in the investigation. Tex. Govt Code 551.072
(http://www.statutes.legis.state.tx.us 2009).
6. Final Actions and Explanation of Compliance with Notice Provisions of TOMA
Texas Government Code 551.102 reads, [a] final action, decision, or vote on a matter
deliberated in a closed meeting under this chapter may only be made in an open meeting that is
held in compliance with the notice provisions of this chapter. Tex. Govt Code 551.102
(http://www.statutes.legis.state.tx.us 2009). A governmental body can only take steps to put into
action a governmental decision only after a final action, decision, or vote in open session is
voted upon at a time when a majority of the board is presentconstituting a quorum and such
item has been adequately described in the Agenda for such meeting. 551.001(6); Tex. Govt
Code 311.013(b) (http://www.statutes.legis.state.tx.us 2009); and 551.041. This act of
taking a final action, decision, or vote will be referred to as final action throughout this
Petition.
One of the key requirements to final actions is compliance with the notice provision.
The notice under the Act is located in the Texas Government Code 551.041 and reads, [a]
governmental body shall give written notice of the date, hour, place, and subject of each meeting
held by the governmental body. 551.041 . The only way that the general public can monitor
its governmental body is by notification of topics to be discussed in both open and closed
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sessionsthis is done by way of publishing an agenda. Once the board publishes an agenda, it
may not deviate from that agenda for to do so would result in a violation of TOMAthis is a
violation because notice would be rendered ineffective. 551.041; Tex. Govt Code Ann.
551.142 (http://www.statutes.legis.state.tx.us 2009).
In Cox, the Texas Supreme Court stated that notice is sufficient as long as a reader is
alerted to the topic for consideration and that the reader need not be alerted to all the
consequences that may flow from such topic up for consideration. Cox Enters., Inc.. at 958.
(quoting Lower Colorado River Authority, 523 S.W.2d at 646. The Supreme Court proceeds to
state that general notice in certain cases is substantial compliance with the notice provision of the
Act even though the notice may not be as specific as it could be; but, it cautions that less than
full disclosure is not substantial compliance.Id. at 959-960.
The courts have ruled that the more important a particular issue is to the community, the
more specific the posted notice in the agenda must be. See Id. at 958-59; Point Isabel Indep.
Sch. Dist., 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions
of the Act "are mandatory and are to be liberally construed in favor of open government."
Ramos, 235 S.W.3d at 467; Cox Enters., Inc., 706 S.W.2d at 957.
Again, the Supreme Court concludes by saying the TOMA is intended to protect publics
interest through knowledge of the workings of its government and the public should not be
compelled to resort to the assistance of Courts to receive assurance that a public body has
complied with TOMArather a public body should act with such apparent willingness to
comply with TOMA that the public needs no assistance from the Courts. Cox Enters., Inc., 706
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S.W.2d at 960.
Unfortunately, examples of adequate notice of final actions are scant according to
Texas case law. However, here are a few snippets of cases addressing such issues.
Respondent violated the Texas Open Meetings Act when italtered the Transportation Plan from the form it [sic] was approved
and voted on in public on May 16, 2000. Any changes made to theTransportation Plan ... were not made with the public being able to
observe how its government was conducting public business. Assuch, Respondent violated ... Tex. Gov't Code 551.002,
551.021, 551.022, 551.041, 551.043, and/or 551.102." HaysCounty v. Hays County Water Planning P'ship, 69 S.W.3d 253
(Tex.App.-Austin 2002, no pet.).
First, the City Council voted to table the approval ofWeatherford's second rezoning application before it went into
closed session and then simply voted again to table the applicationafter the closed session. Further, the action taken by the City
Council before and after the closed session was essentially theaction Weatherford requested; namely, that the Council not
consider his second rezoning application. Finally, even if opinionswere expressed by the Council members in the closed session, such
expression is not prohibited, as long as the final decision or votewas made in an open session. Weatherford v. City of San Marcos,
157 S.W.3d 473, 483 (Tex.App.-Austin 2004, pet. denied).
If a notice specifically discloses the subject to be considered,TOMA's requirements are met and the governmental body can take
final action, decide, or vote on a matter. City of San Angelo v. Tex. Nat'l Resource Conservation Comm'n, 92 S.W.3d 624, 629
(Tex.App.-Austin 2002, no pet.).
Our citizens are entitled to more than a result. They are entitlednot only to know what government decides but to observe how and
why every decision is reached." Ramos, at 470. (quotingAcker v.Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990).
As a reminder to the Court, Petitioner highlights C-FB ISD Board of Trustees own
policy related to notice posted on its own website and is as follows:
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Agendas for all meetings shall be sufficiently specific to informthe public of the subjects to be deliberated at the meeting, setting
out any special or unusual matters to be considered or any matterin which the public has a particular interest. Deliberations or
actions pertaining to the Superintendent and principals are of
particular public interest, and notice of those subjects must beworded with such clarity that the public will understand what theBoard proposes to discuss or accomplish. Cox Enters., Inc., 706
S.W.2d at 959; Point Isabel Indep. Sch. Dist., 797 S.W.2d at 179(Tex. App.Corpus Christi 1990, writ denied); Atty. Gen. Ops.
M-494 (1969), H-419 (1974), H-662 (1975), H-1045 (1977). SeeC-FB ISD Board of Trustee Policy BE (Legal).
The terms employee briefing or staff briefing do not give
adequate notice of the subject matter to be presented to the Board by employees or staff members. Atty. Gen. Op. No. JC-169
(2000). Id.
The subject of a report or update by District staff or a member ofthe Board must be set out in the notice in a manner that informs a
reader about the subjects to be addressed. Atty. Gen. Op. No. GA-668(2008). Id.
7. Enforcement of TOMA
Texas Government Code 551.142(a) provides, An interested person, including a
member of the news media, may bring an action by mandamus or injunction to stop, prevent, or
reverse a violation or threatened violation of this chapter by members of a governmental body.
Tex. Govt Code 551.142 (http://www.statutes.legis.state.tx.us 2009). Additionally, Texas
Government Code 551.142(b) provides, The court may assess costs of litigation and
reasonable attorney fees incurred by a Petitioner or Respondent who substantially prevails in an
action under Subsection (a). 551.142. In exercising its discretion, the court shall consider
whether the action was brought in good faith and whether the conduct of the governmental body
had a reasonable basis in law. 551.142.
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8. Consequences of TOMA Violation According to State Law
Compliance with the Open Meetings Act is mandatory, and actions taken by a
governmental body in violation of the Act are subject to judicial invalidation. City of Bells v.
Greater Texoma Util. Auth., 744 S.W.2d. 636, 640 (Tex. App.Dallas 1987, no writ). See
Lower Colorado River Authority, 523 S.W.2d at 646.; Garcia v. City of Kingsville, 641 S.W.2d
339, 341 (Tex.App.---Corpus Christi 1982, no writ). The Court of Appeals in Dallas stated,
Although the trial court, in its amended findings of fact and conclusions of law, concluded that
GTUA had substantially complied with the Act with respect to any meetings relevant to the bond
issues in question (including the meeting which authorized this suit), we need not decide whether
the trial court was correct because substantial compliance is not sufficient. City of Bells, 744
S.W.2d. at 640. Literal compliance is required under the Act. Id.; See Smith County v.
Thorton, 726 S.W.2d 2, 2--3 (Tex.1986). The Dallas Court of Appeals preceded to instruct the
District court to vacate its judgment and dismiss the caseprocedurally speaking the Petitioner
in the case was the party who violated the open meeting act and the Petitioners action were
invalidated. City of, 744 S.W.2d. at 640.
VIII. LEGAL ARGUMENT
Petitioner has a clear right to the relief requested herein and clearly demands that right.
The Respondent had a clear legal duty to perform the act which is the subject of relief
herein, and the Respondent has refused to perform a ministerial act that the Respondent is
required to perform. There is no other adequate remedy at law available, whether through
appeal to the Board itself or otherwise, to rectify the improper action or omission complained of
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herein. In fact such appeals have been made to the Board itself by the public but such appeals
have been largely ignored.
1. The Texas Opens Meeting Act Applies to the C-FB ISD Board of Trustees
The TOMA applies to the C-FB ISD Board of Trustees. The Texas Education Code
11.1511(b)(5) which reads, the board shall adopt a policy to establish a district- and campus-
level planning and decision-making process as required under Section 11.2512. 11.1511. The
C-FB ISD Board of Trustees is the entity whereby its members are appointed by vote of the
people and given the authority to act on behalf of the school district to initiate policy, make
decisions, and direct and steer the school district into the future. Furthermore, the Texas
Government Code 551.001(3)(E) indicates that a school board is a governmental body to
which the Texas Open Meetings Act (also referred to as TOMA or the Act) will apply.
551.001. The C-FB ISD Board of Trustees is a governmental body; therefore, the TOMA
applies to the C-FB ISD Board of Trustees.
2. Alleged TOMA Violations at Certain C-FB ISD Board Meetings
The C-FB ISD Board of Trustees has violated the TOMA on several occasions. TOMA
requires meetings of governmental bodies to be publicly held when exercising governmental
authority where all discussions are open to the public subject to a few exceptions that allow
deliberations and discussions to take place in closed sessions. Regardless of whether a
particular item is discussed in an open or closed sessions--before the governmental authority can
take any action-- the decided action must be finalized and voted on in an open (public)
2 Texas Education Code 11.251 provides a comprehensive definition of Planning and Decision Making as
applied to school districts.
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session. TOMA also requires advance notice for each meeting, and TOMA provides for civil and
criminal enforcement when a governmental body violates the Act. Implicit in the requirement
for advance notice is the requirement for clarity so that the public can identify what is being
discussed and what is being acted upon. The Board of Trustees may not discuss any item or
subject not listed on the Agenda in an open or closed meeting; except to say that such item
should be scheduled for discussion at a later time when it can properly be listed on the agenda.
A. Final Action Too Vague for Public Understanding
The C-FB ISD Board of Trustees violated TOMA on June 25, 2009 when the board
passed a motion to take action which failed to designate which items on the agenda where being
voted on at that time thereby denying the public the ability to determine what agenda discussion
items resulted in a decided action. Texas Government Code 551.102 reads, [a] final action,
decision, or vote on a matter deliberated in a closed meeting under this chapter may only be
made in an open meeting that is held in compliance with the notice provisions of this chapter.
551.102. A governmental body can only take steps to put into action a governmental decision
only after a final action, decision, or vote in open session is voted upon at a time when a
majority of the board is presentconstituting a quorum and such item has been adequately
described in the Agenda for such meeting. 551.001(6); 311.013(b); and 551.041. This act
of taking a final action, decision, or vote will be referred to as final action throughout this
Petition.
One of the key requirements to final actions is compliance with the notice provision.
The notice under the Act is located in the Texas Government Code 551.041 and reads, [a]
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governmental body shall give written notice of the date, hour, place, and subject of each meeting
held by the governmental body. 551.041 . The only way that the general public can monitor
its governmental body is by notification of topics to be discussed in both open and closed
sessionsthis is done by way of publishing an agenda. Once the board publishes an agenda, it
may not deviate from that agenda for to do so would result in a violation of TOMAthis is a
violation because notice would be rendered ineffective. 551.041; 551.142.
In Cox, the Texas Supreme Court stated that notice is sufficient as long as a reader is
alerted to the topic for consideration and that the reader need not be alerted to all the
consequences that may flow from such topic up for consideration. Cox Enters., Inc.. at 958.
(quoting Lower Colorado River Authority, 523 S.W.2d at 646. The Supreme Court proceeds to
state that general notice in certain cases is substantial compliance with the notice provision of the
Act even though the notice may not be as specific as it could be; but, it cautions that less than
full disclosure is not substantial compliance.Id. at 959-960.
The courts have ruled that the more important a particular issue is to the community, the
more specific the posted notice in the agenda must be. See Id. at 958-59; Point Isabel Indep.
Sch. Dist., 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions
of the Act "are mandatory and are to be liberally construed in favor of open government."
Ramos, 235 S.W.3d at 467; Cox Enters., Inc., 706 S.W.2d at 957.
Again, the Supreme Court concludes by saying the TOMA is intended to protect publics
interest through knowledge of the workings of its government and the public should not be
compelled to resort to the assistance of Courts to receive assurance that a public body has
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governmental body is by notification of topics to be discussed in both open and closed sessions.
The Texas Government Code 551.041 reads, [a] governmental body shall give written notice
of the date, hour, place, and subject of each meeting held by the governmental body.
551.041. That means a governmental body must give the public notice of the subjects that will
be discussed and considered in an open meeting or a closed session. Cox Enters., Inc., 706
S.W.2d at 958; Porth, 622 S.W.2d at 470. When the notice specifically discloses the subject to
be considered at the upcoming meeting, the statute's notice requirement is met. See Cox Enter.,
706 S.W.2d at 959.
The courts have ruled that the more important a particular issue is to the community, the
more specific the posted notice in the agenda must be. Id. at 958-59; Point Isabel Indep. Sch.
Dist, 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions of the
Act "are mandatory and are to be liberally construed in favor of open government." Ramos, 235
S.W.3d at 467; Cox Enters., Inc., 706 S.W.2d at 957. After explaining that notice under the Act
"should specifically disclose the subjects to be considered at the upcoming meeting", the court
held that describing agenda items as litigation when the suit was related to a desegregation
lawsuit and personnel when it pertained to the selection of a new superintendent, "did not
provide full and adequate notice, particularly because the subject slated for discussion was one of
special interest to the public." Cox Enters., Inc. at 959. No judicial decision or attorney general
opinion states that a governmental body must indicate in the notice whether a subject will be
discussed in open or closed session. Tex. Atty Gen. Op. No. JC-0057 (1999) at 6. However, if
the notices posted for a governmental bodys meetings consistently distinguish between subjects
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
for public deliberation and subjects for executive session deliberation, an abrupt departure from
this practice may raise a question as to the adequacy of the notice. Id.
In Cox, the Texas Supreme Court stated that notice is sufficient as long as a reader is
alerted to the topic for consideration and that the reader need not be alerted to all the
consequences that may flow from such topic up for consideration. Id. at 958. (quoting Lower
Colorado River Authority, 523 S.W.2d at 646. The Supreme Court proceeds to state that general
notice in certain cases is substantial compliance with the notice provision of the Act even though
the notice may not be as specific as it could be; but, it cautions that less than full disclosure is not
substantial compliance. Id. at 959-960. The Supreme Court concludes by saying the TOMA is
intended to protect publics interest through knowledge of the workings of its government and
the public should not be compelled to resort to the assistance of Courts to receive assurance that
a public body has complied with TOMArather a public body should act with such apparent
willingness to comply with TOMA that the public needs no assistance from the Courts. Id. at
960.
The C-FB ISD Board of Trustees own policy posted on its website is as follows:
Agendas for all meetings shall be sufficiently specific to informthe public of the subjects to be deliberated at the meeting, setting
out any special or unusual matters to be considered or any matterin which the public has a particular interest. Deliberations or
actions pertaining to the Superintendent and principals are of particular public interest, and notice of those subjects must be
worded with such clarity that the public will understand what theBoard proposes to discuss or accomplish. Cox Enterprises, Inc. v.
Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex. 1986); Point IsabelIndep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176 (Tex. App.
Corpus Christi 1990, writ denied); Atty. Gen. Ops. M-494 (1969),H-419 (1974), H-662 (1975), H-1045 (1977). See C-FB ISD
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
FB ISD Board of Trustees was discussing an investigation which the board has determined that
situation to be a policy issue but that the board intentionally disguised the purpose of the report
under the concealment of attorney client privileged. However, because the public cannot
determine the subject of the report the board; it is unclear whether there is a clear violation of
TOMA for lack of adequate notice or whether there is a clear violation of TOMA for lack of
adequate notice and an intentional act to disguise a report under the guise of attorney client
privilege to cover discussions that are related solely to policy. Worst case scenario is that the C-
FB ISD Board of Trustees is hiding something so egregious and damaging that the Board has
resorted to misinformation as a way to hide the truth from the publicthis is something the
public would have a strong interest in knowing.
Because the public has not been adequately informed, it is suspected but not clearly
known at this time that the Board of Trustees was receiving a report from counsel regarding an
investigation ultimately announced to the public on November 12, 2009. However, there has
never been a public announcement, action, or agenda related to an investigation on August 13,
2009 or any other day, prior to November 12, 2009. The Board of Trustees has not taken action
to initiation any investigation and not taken any public action to hire an outside firm to conduct
the investigation. The public, at this time, does not know the person or persons hired to conduct
such investigation. Since there has been no action to start an investigation or hire counsel to
conduct an investigation, there is no proof that any investigation has actually been conducted. If
this investigation in any way relates the R.L Turner, then the subject of the investigation was
initiated to explore purported profound improprietiesthe extent of which can be determined
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
through, live testimony, discovery and any in camera reviews of certified closed session minutes
or recordings. Petitioner will shortly a Motion to Tender Documents for In Camera Inspection
After such time, as the in camera inspection Petitioner can supplement her petition to more
accurately address this issue. It stands to reason that if the board has improperly used the
attorney client privilege to disguise discussions of policy; Texas law states that the C-FB ISD
Board of Trustees has the burden to prove the attorney client privilege applies. A closer review
of all claims of attorney client privilege related to the agenda items discussed in this petition may
need to be reviewed by this Court to determine if such privilege truly applies.
C. Discussion of an Item Not on the Agenda
The C-FB ISD Board of Trustee violated the TOMA by holding discussion about an the
Fleming case when such item was not listed on the agenda. The Texas Government Code
551.041 provides that [a] governmental body shall give written notice of the date, hour, place,
and subject of each meeting held by the governmental body whether such item is to be
discussed in opened or closed session. 551,041; Cox Enters., Inc., 706 S.W.2d at 958; Porth,
622 S.W.2d at 470..
As Petitioner has stated before, the only way that the general public can monitor its
governmental body is by notification of topics to be discussed in both open and closed
sessionsthis also applies to final actions taken by the Board . Courts have ruled that the more
important a particular issue is to the community, the more specific the posted notice in the
agenda must be. See CoxEnters., Inc., 706 S.W.2d at 958-59;Point Isabel Indep. Sch. Dist., 797
S.W.2d at 179-81. Underlying these considerations is the fact that the provisions of the Act "are
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mandatory and are to be liberally construed in favor of open government." Ramos, 235 S.W.3d
at 467; Cox Enters.,Inc., 706 S.W.2d at 957.
On August 27 2009, at a Regular Meeting of the Board of Trustees, the notice of meeting
and agenda items do not mention the discussion of the 95th
District Court Case Number 09-
07085 styledFleming v. C-FB ISD in closed or open session. The C-FB ISD Board of Trustees
discussed the Fleming case in closed session. The Agenda for the closed session states as
follows: A. Consider All Matters Related to Purchase, Exchange, Lease, or Value of Real
Property- Action. No supplemental agenda item was placed on the agenda such that this
information could be spoken about. In a subsequent Freedom of Information Request by Mr.
Mark Gommesen, Mr. Gommesen received documentation whereby board member Karin Webb
posed a question as to why such litigation was not on the agenda with a reply by Mr. Mark Hyatt.
Mr. Hyatt stated, At this time there is no apparent action that is required. Any new information
related to the lawsuit may be presented to the Board under the closed meeting agenda item.
The November 12th
, 2009 Regular Meeting of the Board of Trustees, notice of meeting
and agenda item for the closed session states:
A. Consider All Matters Related to Purchase, Exchange,Lease, or Value of Real Property Action Exec. Summary -
Real Property Closed Session 11-1
B. Counsel Briefing From Henslee Schwartz, LLP, to IncludeOral Report and Update on Legal Matters Regarding Laningham
vs. C-FB ISD and Wade vs. C-FB ISD Exec. Summary -Henslee Report Closed Session
There is no designation anywhere on the agenda that an investigation would be discussed either
in open session or in closed session. The investigation would not and is not related to
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
Laningham vs. C-FB ISD and Wade vs. C-FB ISD. Testimony from the school board can and
will prove this. In fact, Nancy Watten admitted to Mark Gommesen that the investigation was
related to a former principal from R.L. Turner named Lance Campbell.
Texas is law is very clear. Any item discussed in open or closed session must be listed
on the agenda. The C-FB ISD Board of Trustees violated TOMA because the board discussed
the Fleming case on August 27, 2009 when such item was not on the agenda and the Board
discussed an investigation on November 12, 2009 when such item was on not the Agenda
because Texas law requires full disclosure of all items to be discussed at a Board Meeting
whether in open or closed session.
D. Never Voted to Initiate an Investigation Through an Outside Firm and Never
Voted to Accept Investigation Report
The Board of Trustees has violated the TOMA by starting an investigation without
providing notice to the public and taking any final action to hire an outside firm to conduct the
investigation. Texas Government Code 551.102 reads, [a] final action, decision, or vote on a
matter deliberated in a closed meeting under this chapter may only be made in an open meeting
that is held in compliance with the notice provisions of this chapter. 551.102. A
governmental body can only take steps to put into action a governmental decision only after a
final action, decision, or vote in open session is voted upon at a time when a majority of the
board is presentconstituting a quorum and such item has been adequately described in the
Agenda for such meeting. 551.001(6); 311.013(b); and 551.041. This act of taking a
final action, decision, or vote will be referred to as final action throughout this Petition.
One of the key requirements to final actions is compliance with the notice provision.
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
The notice under the Act is located in the Texas Government Code 551.041 and reads, [a]
governmental body shall give written notice of the date, hour, place, and subject of each meeting
held by the governmental body. 551.041. The only way that the general public can monitor
its governmental body is by notification of topics to be discussed in both open and closed
sessionsthis is done by way of publishing an agenda. Once the board publishes an agenda, it
may not deviate from that agenda for to do so would result in a violation of TOMAthis is a
violation because notice would be rendered ineffective. 551.041; 551.142.
In Cox, the Texas Supreme Court stated that notice is sufficient as long as a reader is
alerted to the topic for consideration and that the reader need not be alerted to all the
consequences that may flow from such topic up for consideration. Cox Enters., Inc. at 958.
(quoting Lower Colorado River Authority, 523 S.W.2d at 646. The Supreme Court proceeds to
state that general notice in certain cases is substantial compliance with the notice provision of the
Act even though the notice may not be as specific as it could be; but, it cautions that less than
full disclosure is not substantial compliance.Id. at 959-960.
The courts have ruled that the more important a particular issue is to the community, the
more specific the posted notice in the agenda must be. See Id. at 958-59; Point Isabel Indep.
Sch. Dist., 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions
of the Act "are mandatory and are to be liberally construed in favor of open government."
Ramos, 235 S.W.3d at 467; Cox Enters., Inc., 706 S.W.2d at 957.
Again, the Supreme Court concludes by saying the TOMA is intended to protect publics
interest through knowledge of the workings of its government and the public should not be
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compelled to resort to the assistance of Courts to receive assurance that a public body has
complied with TOMArather a public body should act with such apparent willingness to
comply with TOMA that the public needs no assistance from the Courts. Cox Enters., Inc., 706
S.W.2d at 960.
The Board of Trustees has not taken action to initiation any investigation and has not
taken any public action to hire an outside firm to conduct the investigation. The public, at this
time, does not know the person or persons hired to conduct such investigation. Since there has
been no action to start an investigation or hire counsel to conduct an investigation, there is no
proof that any investigation has actually been conducted. If this investigation in any way relates
to irregularities at R.L. Turner, then the subject of the investigation was initiated to explore
purported profound improprieties. The C-FB ISD has violated TOMA by taking action without
a final action vote on open session.
E. Improper Closing of Open Session to go into Closed Session
The C-FBISD Board of Trustees violated TOMA when the presiding officer closed the
meeting and failed to publically identify the section or sections allowing them to close the
meeting. The Texas Government Code 551.101 states that if a closed session is allowed the
presiding officer must, publically (a) announce[s] that a closed meeting will be held; and (b)
identifies the section or sections of this chapter under which the closed meeting is held.
551.101.
A careful and plain reading of the TOMA reveals that if a closed meeting is authorized
(i.e. an exception applies), the governing body must comply with the procedural steps
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enumerated in TOMA. Martinez, 879 S.W.2d at 56. On the other hand, if one of the
exceptions does not apply, then the closed meeting violates the Act regardless of whether the
governing body complied with the procedural steps. Id. The policy behind the TOMA is that
the public should be aware of which members of a governing body are present in a closed
meeting and whether a quorum exists. Id. Additionally, the presiding officer must identify the
section or sections that authorize the closed session for the following reasons: 1) to cause the
governmental body to assess the applicability of the exceptions before deciding to close the
meeting; 2) to fix the governmental bodys legal position as relying upon the exceptions
specified; and 3) to inform those present of the exceptions, thereby giving them an opportunity to
object intelligently. Lone Star Greyhound Park, Inc, 863 S.W.2d at 747. However, when
judging the sufficiency of the presiding officers announcement in light of whether it effectuated
or hindered the purposes of 551.101, the Lone StarCourt found that the presiding officers
reference to the content of a section, rather than to the section number, sufficiently identified the
exception. Id. at 747.
On August 13, 2009 Regular Meeting of the Board of Trustees, where are quorum of
board members were present and seated, the presiding officer asked for any comments from
board members. Then Ms. Chaffin proceeded to adjourn the open meeting and announced they
would reconvene in closed session. The presiding officer did not identify the section or sections
under which they were closing the meeting. Ms. Chaffins statement was,
Um Item Number, Number 6, comments from board membersregarding posted agenda items. Board members? Hearing none
seeing none, item number 7 closed meeting as authorized under theTexas Government Code including but not limited to, to uh,
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
551.071 Consultation with Attorney; 551.072 Real Property;551.074 Personnel Matters; 551.076 Security Devices; 551.082
School Children/District Employees/Disciplinary Matter orComplaint; 551.0821 - Personally Identifiable Student
Information; 551.084 Investigation. We will now leave closed
session and go into or leave open session and go into closedsession for items a, b and c. We are adjourned from open sessionat 11:32. You guys get to leave; lucky you.
The Agenda for the closed session states:
A. Consider All Matters Related to Purchase, Exchange, Lease,or
Value of Real Property
B. Consider All Matters Related to Cause Number 09-07085,Richard Fleming v. Carrollton-Farmers Branch independent
School District and Lynn Chaffin, Presiding Officer, 95th JudicialDistrict Court, Dallas County (Texas Government Code 551.071
Consultation With Attorney)
C. Report From Attorney
The C-FBISD Board of Trustees Presiding Officer, Lynn Chaffin, says that the Board
will close the session relying on closed meeting as authorized under the Texas Government
Code including but not limited to, to uh, 551.071 Consultation with Attorney; 551.072 Real
Property; 551.074 Personnel Matters; 551.076 Security Devices; 551.082 School
Children/District Employees/Disciplinary Matter or Complaint; 551.0821 - Personally
Identifiable Student Information; 551.084 Investigation. This statement is confusing.
Furthermore, not all exceptions would apply according to the agenda so it appears the C-FB ISD
Board of Trustees is making a blanket statement of exceptions without considering whether such
exception apply to the items being discussed. This is a violation of TOMA.
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
At the August 272009 Regular Board Meeting of C-FBISD, where the board sat in
quorum, Lynn Chaffin asked for comments from board members, following that section of the
agenda, Chaffin stated,
We will close the regular board meeting and we will go intoclosed meeting as authorized by Texas Government Code to
Section 551.071 Consultation with Attorney; 551.072 RealProperty; 551.074 Personnel Matters; 551.076 Security Devices;
551.082 School Children/District Employees/Disciplinary Matteror Complaint; 551.0821 - Personally Identifiable Student
Information; 551.084 Investigation. So I will declare this regularmeeting to be closed at 10:06 and we will reconvene in 5 minutes
in closed session.
The Agenda for the closed session states:
A. Consider All Matters Related to Purchase, Exchange, Lease, or Value of Real
Property- Action. At no time did Ms. Chaffin specify which exception the meeting was
allowing the board to close the meeting. Petitioner says this because not all exceptions would
apply according to the agenda so it appears the C-FB ISD Board of Trustees is making a blanket
statement of exceptions without considering whether such exception apply to the items being
discussed. This is a violation of TOMA.
At the September 10, 2009 Regular Board Meeting of C-FBISD, while the board sat in
quorum, Lynn Chaffin stated as follows:
Okay in that case we are going to adjourn the openmeeting and go into closed session as authorized by the Texas
Government Code 551. Um, So I will adjourn this meeting at8:57 and we will reconvene in 10 minutes.
The Agenda for the closed session states:
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A. Consider All Matters Related to Purchase, Exchange, Lease,orValue of Real Property - Action
B. Hear Level III Grievance Appeal of Ms. Linda Price
C. Hear Level III Workers Compensation Grievance Appeal of
Ms. Linda Price
D. Consider All Matters Related to Cause Number 09-07085
,Richard Fleming v. Carrollton-Farmers Branch IndependentSchool District and Lynn Chaffin, Presiding Officer, 95
thJudicial
District Court, Dallas County (Texas Government Code 551.071 Consultation With Attorney)
At no time did Ms. Chaffin specify which exceptions to the Open Meetings Act allowed them to
close the open meeting. This is a violation of TOMA.
At the September 24,2009 Special Board Meeting of C-FBISD, while the board sat in
quorum, Lynn Chaffin stated
Um that said we will move on to our agenda item, our first
agenda item for tonight is a closed meeting to hear a third levelgrievance, so we are going to have to ask you all to leave. We are
so sorry, but I am going to go ahead and close this open sessionand we will reconvene in 5 minutes in closed session.
The Agenda for the closed session states:
A. Hear Level III Grievance Under Board Policy FNG (LOCAL)
At no time did Ms. Chaffin specify which exceptions to the Open Meetings Act allowed them to
close the session. This is a violation of TOMA.
At the October 8,2009 Regular Board Meeting of C-FBISD, while the board sat in
quorum, Ms. Chaffin stated,
Agenda item 4 which will be closed meeting as authorized underthe Texas Government Codeincluding but not limited to, 551.071
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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY
RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT
.071 Consultation with Attorney; 551.072 Real Property; 551.074Personnel Matters;