Experts: Bryan school board broke meetings law; district disagrees

By Caitlin Perrone
The Eagle
Originally published Sept. 27, 2013

Bryan school board members recently added an issue to the executive session portion of their agenda, just minutes before gathering behind closed doors – a move that several experts said was a violation of the Texas Open Meetings Act.

“Personnel” was the only topic listed for discussion during the executive session of the council’s Sept. 16 meeting, but the board added a subject related to the Navasota school district’s dropping out of a three-district effort to secure a federal grant. Bryan would be replacing Navasota as lead organizer for the project.

School district officials said they followed the law and “strongly disagree” with the assessment made by several attorneys who are longtime board members of the Freedom of Information Foundation of Texas, who said the move was a violation of the law.

According to lawyers Joel White and Joe Larsen, as well as an expert in media law who teaches reporting at the University of Texas, the Texas Open Meetings Act requires that the public be notified within 72 hours of adding a new topic. In case an emergency arises, two-hour notice is required, White said.

Superintendent Tommy Wallis said timing wasn’t an issue. Instead, he said, the issue board members added at the last minute was a personnel matter, so the board was legally able to discuss the new item without notifying the public.

The 72-hour notice rule gives the public a chance to attend the meeting, according to White, an Austin-based attorney whose firm specializes in First Amendment issues.

“And if they’re just adding things on at the meeting, then that means nobody has any idea what they’re going to discuss in advance,” White said. “If they could just add things on while at the meeting, that pretty much defeats the purpose of the entire act.”

In its regular meeting, the board heard a presentation on a grant that would partner the Bryan district with the Crockett and Goodrich school districts. The three districts would split $20 to $25 million from the grant through December 2018.

Throughout the hour-long presentation, board members asked questions of Dawn Marie Baletka, the director of grants for the Navasota school district, which originally was set to participate in the grant. Though Navasota backed out, Baletka remained on as the grant writer since she started the process and said she felt it was her responsibility to see through the process of getting the funding.

When board members questioned why Navasota backed out, Baletka said: “The attorney general of the state of Texas has stated information pertaining to funding or competitions for funding can be discussed in closed session” and does not have to be disclosed to the public.

Bryan board members Maritza Hoffman and Tommy Bosquez expressed concern about not hearing why the Navasota school district backed out of the grant, and Bosquez asked whether they could hear the reason behind closed doors.

“You said it was something about competition for grants — can that be in closed session?” Bosquez asked. “I haven’t heard that, but you need to specify that’s one of the issues we’re going to talk about.”

“I would be happy to add that to the executive session topic,” board president Doug Wunneburger said. “Consider it done.”

In a later interview, Wunneburger said he hesitated to add the item to executive session because it had to do with Navasota school district personnel, not Bryan employees.

“We had executive session on the agenda for our own personnel. When it came up to a personnel issue related to that grant from Navasota ISD, we went ahead into executive session at that moment,” he said later.

White said adding something to an executive session while at that very meeting “would clearly be a violation of the Open Meetings Act.”

“If they wanted to do that, what they would have to do would be to post it and then discuss it at the next meeting in executive session,” he said.

The discussion behind closed doors fell under the personnel category, Wallis said, because it was related to the Navasota district’s personnel.

White disagreed.

“That’s not your personnel issue, that’s not what the exception is there for,” White said. “The exception [to having to meet in open session] is so you can candidly discuss your own personnel without embarrassing them in front of the public.”

Houston-based attorney Joe Larsen said he doesn’t understand why the Bryan school board would be talking about personnel in Navasota, even though a grant is involved.

“I don’t understand … much less why they would be compelled to do that in executive session when that exception does not apply to them in any way, that exception applies to Navasota,” said Larsen. “If Navasota wants to discuss personnel in an executive session, they can do it, provided they post it in advance of a meeting.” Wallis said that Baletka could not answer in an open forum why Navasota backed out of the grant, but the Bryan leaders needed to know the reason because a deadline was fast approaching.

According to a transcript of the meeting, though, Baletka did not mention personnel issues as a reason to speak behind closed doors. She cited the competitive nature of the grants, but Larsen said that is not a legally justifiable reason to hold the discussion in private.

Rory Gesch, the superintendent of Navasota school district, said part of the reason his district backed out of the grant may have been personnel, but “the bottom line was logistics.”

“We, as a staff, didn’t have time to sustain it and develop all the information to put it forth to the district,” he said. “There wasn’t anything wrong with the grant, there wasn’t anything bad about it, there wasn’t a problem with it — timing-wise it just wouldn’t have fit with what we believed where our efforts needed to be with our administrative staff.”

Wallis said he was confident that the board was within its rights to move the conversation into executive session.

“I can assure you the district did not break the law in any way,” he said. “We’ve already talked to our attorney. We feel very confident in what we’re doing and what we have done. We don’t feel like we broke the law in any way, shape or form.”

Wanda Cash, a professor at The University of Texas at Austin and former board member of the Freedom of Information Foundation of Texas, said it’s not an uncommon mistake for school boards across the state to make.

“The attorney general has long held that simply citing the exceptions on the agenda is insufficient, you can’t just say ‘personnel.’ You have to tell what it regards,” Cash said. “But school boards do it all the time. In my opinion, school boards are the worst offenders of meeting agenda laws.”

Ultimately, the Bryan school board voted unanimously during a workshop meeting on Sept. 20 to move forward with the grant application.

The grant is geared toward districts with high levels of poverty and other needs.

The funding would allow the district to offer new programs, such as evening Spanish classes to help employees communicate with families, and parental training that would provide tips for helping children with homework.