Texas AFL-CIO, Gene Edgerly, and Boyce Breedlove v. Texas Workforce Commission

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00298-CV Texas AFL-CIO, Gene Edgerly, and Boyce Breedlove, Appellants v. Texas Workforce Commission, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. 97-10312, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING The Texas AFL-CIO, Gene Edgerly, and Boyce Breedlove (collectively "appellants") sued the Texas Workforce Commission (1) (the "Commission"), alleging that the Commission violated the Texas Open Meetings Act (2) by meeting in closed session and directing the executive director of the Commission to eliminate the labor field representative staff positions. Appellants also alleged that Edgerly and Breedlove were selected for termination or reassignment due to their affiliation with the Texas AFL-CIO. The Commission moved for summary judgment, and appellants filed a cross-motion for partial summary judgment. The trial court denied appellants' cross-motion and granted the Commission's motion for summary judgment. Appellants appeal the trial court order granting the Commission summary judgment. We will reverse the judgment and remand the case to the trial court for further proceedings. THE CONTROVERSY In granting the Commission's motion for summary judgment, the trial court did not specify the ground on which it based its judgment. When a trial court does not specify the ground on which it granted summary judgment, the judgment will be affirmed on any meritorious theory asserted in the motion and found in the record that proves conclusively that the nonmovant cannot prevail. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We review the record under familiar precepts: (1) a movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed issue of material fact precluding summary judgment, matters in the record that favor the nonmovant will be taken as true; and (3) every reasonable inference from the record must be indulged in favor of the nonmovant and any doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Appellants Edgerly and Breedlove were employed as labor field representatives by the Commission. Their primary duty was to serve as liaison between the Commission and organized labor. On or about August 19, 1997, and September 3, 1997, the Commission met to discuss staff realignment pursuant to posted agenda items described as "Executive Session Pursuant to Government Code § 551.074 to Discuss Personnel Matters with Executive Staff" (3) and "Discussion Regarding New Agency Organizational Structure for Monitoring Function." The official notes from each meeting, signed by all three commissioners, indicate that the commissioners discussed personnel matters in closed session but took no action. The notes also indicate that at the September 3 open meeting, Mike Sheridan, the executive director of the Commission, (4) announced that, "as directed by the Commission," the labor field representative positions would be eliminated. Appellants contend that the Commission, without giving proper notice to the public, (5) voted in closed session to eliminate the labor field representative positions and thus violated the Act. (6) Therefore, appellants argue that any action taken pursuant to the "illegal" vote is voidable. See Tex. Gov't Code Ann. § 551.141 (West 1994). The Commission contends that, during closed session, the commissioners received information from executive director Sheridan concerning his intention to proceed with agency reorganization. The Commission argues that while the commissioners expressed their opinions regarding Sheridan's plan in closed session, no vote was taken and the Commission "did not authorize, ratify, approve, or otherwise take official action on the proposal." Furthermore, the Commission contends that even assuming it violated the Act by voting during a closed session, we cannot declare subsequent action taken pursuant to the vote void because executive director Sheridan, not the three voting commissioners, has the sole power to hire and fire Commission employees. Finally, the Commission argues that an open meeting held on or about October 29, 1997 cured any prior violations of the Act. DISCUSSION The Open Meetings Act was enacted for the purpose "of assuring that the public has the opportunity to be informed concerning the transactions of public business." Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990) (citing Act of May 23, 1967, 60th Leg., R.S., ch. 271, § 7, 1967 Tex. Gen. Laws 597, 598). There is a broad scope to the coverage of the Act and a narrowness to its few exceptions. Id. (citing Cox Enter., Inc. v. Board of Trustees, 706 S.W.2d 956, 958 (Tex. 1986)); Sierra Club v. Austin Transp. Study, 746 S.W.2d 298, 300 (Tex. App.--Austin 1988, writ denied). Because citizens are entitled to know not only what government decides but to observe how and why every decision is enacted, exact and literal compliance with the terms of the Act is demanded. Acker, 790 S.W.2d at 300 (citing Smith County v. Thorton, 726 S.W.2d 2, 3 (Tex. 1986)). The Commission is a "governmental body" as defined by the Act. See Tex. Gov't Code Ann. § 551.001(3)(A) (West 1994) ("governmental body" includes a "commission . . . within the executive or legislative branch of state government that is directed by one or more elected or appointed members."). Thus, every regular, special, or called meeting of the Commission must be open to the public, except as provided by the Act. Id. § 551.002. A governmental body is excepted from holding an open meeting "to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee." Id. § 551.074. However, a final action, decision, or vote on a matter deliberated in closed session must be conducted in an open meeting. Id. § 551.102. Actions "taken by a governmental body" in violation of the Act are voidable by judicial action. Id. § 551.141. The Commission contends that during meetings held on or about August 19 and September 3, it did not vote or otherwise take official action in closed session to eliminate the labor field representative positions. Appellants argue that the elimination of the labor field representative positions is a voidable action because the Commission violated the Act by illegally voting in closed session. We must review the summary judgment evidence to determine whether a disputed issue of material fact exists concerning whether the Commission took action in closed session that resulted in a reorganization of the agency. By deposition, Commissioner Hammond (the representative of employers) testified that executive director Sheridan informed the Commission in closed session that he was going forward with an agency reorganization that would include the elimination of the labor field representative positions. Hammond testified that, although two commissioners expressed agreement and one commissioner expressed opposition, the Commission did not make a motion to take any action and did not vote, formally or otherwise, to eliminate the positions. Commissioner Rath (the representative of the public) testified that the Commission was briefed concerning the agency reorganization but that no vote was taken. Commissioner O'Mahoney (the representative of labor) testified that the discussion in the closed session "centered on whether [the labor field representatives] should be done away with." O'Mahoney believed that executive director Sheridan "was looking for some sort of guidance." O'Mahoney testified that he was the only commissioner opposed to eliminating the labor field representative positions. Executive director Sheridan testified that during the closed session, Hammond stated that the labor field representative positions were not necessary. Sheridan testified that following Hammond's comments, Rath stated that she too would be in favor of eliminating the positions. Finally, Sheridan testified that O'Mahoney expressed his disagreement with the opinions of the other two commissioners. Sheridan testified that none of the commissioners suggested the need for a vote. Sheridan recalled "stating that I would decide what specific actions I plan to take and report back my decisions/plans to them during the staff reports presentation item at the next Commission meeting." Notes from the September 3 open meeting of the Commission reflect that Sheridan stated that "as directed by the Commission, the realignment in staff plan for the labor representative positions is going forward during the next 30 to 45 days." (Emphasis added.) Joe Gunn, president of the Texas AFL-CIO, testified that on or about August 22, he spoke with executive director Sheridan. Gunn testified that Sheridan told him that the labor field representative positions were being eliminated by the action of two out of the three commissioners and that the commissioners "'made me do it' or words to that effect." Furthermore, appellant Boyce Breedlove testified that Commissioner O'Mahoney told him that the commissioners had "voted 2-to-1" to eliminate the position of labor field representative. (7) Viewing the summary judgment evidence in the light most favorable to appellants as we must, the record indicates that the Commission, after being briefed by the executive director in closed session, engaged in something beyond a deliberation or discussion of the employment status of the labor field representatives. Taking appellants' evidence as true, we find that there exists a disputed issue of material fact concerning whether the Commission voted or took final action in closed session to eliminate the labor field representative positions and ordered the agency director to implement the decision. The Commission contends that even assuming it did violate the Act, its actions are not voidable because the executive director of the Commission has the sole statutory authority to eliminate staff positions. According to the Labor Code, the executive director "may employ and terminate the employment of commission staff members." Tex. Lab. Code Ann. § 301.041(c)(3) (West 1996). The Commission, relying primarily on Spiller v. Texas Department of Insurance, 949 S.W.2d 548 (Tex. App.--Austin 1997, writ denied), argues that because the commissioners had no power to fire or reassign appellants Edgerly and Breedlove, any action taken to that end was without legal effect. Appellants contend that the Commission may not avoid the requirements of the Act by claiming that another party has sole authority over the subject matter of the Commission's closed session vote. In Spiller, this Court considered whether to declare void reductions in the workforce of the Texas Department of Insurance because the reductions had been approved at a closed meeting of the State Board of Insurance. (8) The evidence showed that the three-member Board, believing the Department needed to reduce its workforce, heard presentations on proposed reductions in force. Spiller, 949 S.W.2d at 549-50. One board member assented to the reductions, and no objections were raised by the other two board members. Id. at 550. The insurance commissioner then informed the Board of the impending termination of more than ninety employees. Id. In granting summary judgment to the Department, the trial court in Spiller found that although the Board violated the Act, (9) the reduction was not an "action" taken by the Board because the reduction properly fell within the authority of the insurance commissioner, not the Board. Id.; see also Tex. Gov't Code Ann. § 551.102 (West 1994). In affirming the trial court judgment, this court held that the Board's assent to the employee terminations was "concurrent" and "superfluous" to the commissioner's independent power to fire the employees. Because the Board was merely briefed on or informed of a decision already made by the commissioner, "the trial court did not err by refusing to declare the reduction void despite the finding that the Board violated the Open Meetings Act." Spiller, 949 S.W.2d at 551. The insurance commissioner could have fired the employees without Board approval; thus, even if the Board's approval of the reduction was declared void, the commissioner's action would stand on its own. Id. The Commission also relies on Swate v. Medina Community Hospital, 966 S.W.2d 693, 695-97 (Tex. App.--San Antonio 1998, pet. denied) to support its position. Dr. Swate alleged that his termination from the Hospital was void because the Hospital Board of Managers violated the Act. Swate contended that although the Board did not take a formal vote to terminate his employment, it took a "straw vote" or "secret ballot" in violation of the Act. Id. at 696. The Hospital argued that because the Board had no authority to hire and fire hospital personnel, the Board did not engage in any action the court could declare void. In Swate, the evidence indicated that at the closed session the Board discussed personnel matters related to Swate and questioned the Hospital Administrator concerning Swate's employment status. Id. at 697. The meeting was concluded with "no action taken" as reflected in the minutes. (10) Id. at 695. The trial court found that the Board took no final action, decision, or vote with regard to Swate's employment at the closed meeting. Id. at 697; see also Tex. Gov't Code Ann. § 551.102 (West 1994). The appeals court, relying on the Spiller decision, affirmed the trial court judgment. The Commission contends that Spiller and Swate are factually indistinguishable from the instant case. We disagree. Spiller involved a governmental body alleged to have violated the Act by meeting behind closed doors and receiving information concerning the impending firing of employees. Specifically, there was no indication in Spiller that the State Board of Insurance took final action or formally voted during its closed session, both actions which are required to be conducted in an open meeting. Only one of the three Board members affirmatively assented to the reduction in force, and she agreed that the purpose of the closed session was to give the Board an opportunity to raise any questions or objections to the insurance commissioner's plan. Spiller, 949 S.W.2d at 551. In any event, the Board's approval was not needed to implement the reduction and was not the motivating force behind it. The issue in Spiller was one of remedy: was the action voidable when the agency's chief executive briefed the Board in closed session but without proper notice? This Court concluded: "We find no basis to conclude that [the executive director's] informing the Board and obtaining their approval somehow stripped her of her power to fire appellants." Id. Likewise, the evidence in Swate of a final action or vote taken in closed session is not as compelling as the summary judgment proof in the instant case, which raises a fact question as to whether the Commission, rather than the executive director, may have exercised the authority to reorganize the agency in a closed meeting. Both Spiller and Swate lack a genuine issue of material fact concerning whether a final action, decision, or vote was taken in closed session. In the context of the Act, there is a fundamental distinction between meetings at which only deliberation (11) takes place and meetings at which decisions are made. See Thompson v. City of Austin, 979 S.W.2d 676, 685 (Tex. App.--Austin 1998, no pet.) (Open Meetings Act "does not prohibit members in an executive session from expressing their opinions on an issue or announcing how they expect to vote on the issue in the open meeting, so long as the actual vote or decision is made in the open session.") (citing Board of Trustees v. Cox Enter., Inc., 679 S.W.2d 86, 89 (Tex. App.--Texarkana 1984), rev'd in part on other grounds, 706 S.W.2d 956 (Tex. 1986). In Thompson, two municipal court judges sued the City of Austin after the City Council failed to reappoint them to the bench. Although the plaintiff judges argued that the Council made its decision in private and then revealed that decision to the public through an open meeting, they present[ed] no evidence of anything other than a deliberation behind closed doors . . . . The Council members discussed the merits of each candidate, voiced their opinions as to the qualifications of each and made recommendations, but there is no indication that the Council ever voted on the composition of the municipal court during the private meetings. Id. (emphasis added). Because the record revealed "no evidence of an actual vote before the Council conducted an official vote in its open meeting," we concluded that there was no violation of the Act. Id. In the instant case, there is a disputed issue of material fact as to whether the Commission, by means of a vote or other final action, ordered the executive director to reorganize the agency. The fact that the executive director of the Commission "may employ and terminate the employment of commission staff members" does not foreclose the possibility of voiding actions taken pursuant to a Commission vote, decision, or final action conducted in violation of the Act. It may be a rare case in which a plaintiff can present proof of something more than a deliberative meeting, but because appellants have presented such proof sufficient to raise a question of fact, we cannot hold as a matter of law that there exists no potentially voidable action taken by a governmental body in violation of the Act. The summary judgment proof presents another fact issue. Appellants contend that the summary judgment proof shows that the commissioners made the decision to eliminate the field representative staff positions and ordered the agency director to carry it out. They argue that the central question is "whether Spiller extends to such a subterfuge and permits an agency to avoid the Act by making decisions and then ordering staff to implement them." We decline to extend Spiller to those instances in which the board is the alleged impetus for the decision and the executive director's implementation of the decision is a mere subterfuge for board action taken in a closed session. Whether a subterfuge existed here is an additional question of fact for the fact-finder. The Commission argues that even if appellants' factual allegations and legal arguments are true, a Commission meeting held on or about October 29, 1997 (12) served to cure any prior violations of the Act. At that open meeting, executive director Sheridan reported his plans for the reorganization of the Commission. The official notes from the meeting reflect that Mr. Sheridan stated that there are five program specialists who are outstationed now. Some people refer to them as Labor Representatives. He said he believed it important to have outreach to the workers and worker organizations and plans to keep those five individual positions outstationed in the areas they are in today. If these individuals are near retirement age, they can be included in the retirement option and may take advantage of that. If they choose not to or don't qualify . . . they will be retained in their positions. Chairman Hammond asked whether action was needed with regard to this. Mr. Sheridan replied, no, sir, that according to the Texas Labor Code, he is in charge of and responsible for this. The Commission contends that according to Ferris v. Texas Board of Chiropractic Examiners, 808 S.W.2d 514, 518 (Tex. App.--Austin 1991, writ denied), any harm flowing from alleged "illegal" voting was cured at this properly convened open meeting. A governmental body may not ratify its prior illegal acts. Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646-47 (Tex. 1975); see also Mayes v. City of De Leon, 922 S.W.2d 200, 203 (Tex. App.--Eastland 1996, writ denied); Ferris, 808 S.W.2d at 518. However, a governmental body that has voted or attempted to take formal action without complying with the Act may meet again and validate the action at a properly convened meeting of which the public has received adequate notice. Lower Colo. River Auth., 523 S.W.2d at 646-47. The action will be valid only from the date of the meeting that complies with the Open Meetings Act. Id.; Ferris, 808 S.W.2d at 518. The summary judgment proof in the instant case raises a fact issue as to whether the Commission, by virtue of an improper final action, decision, or vote during a closed session, violated the Act. If the Commission did act illegally, its illegal action could not be later ratified as effective on the date of the illegally convened meeting. Ferris, 808 S.W.2d at 518. At the October 27 open meeting, the Commission evidently did not vote concerning the status of the labor field representatives. Illegal voting cannot be validated by mere deliberation; the "cure" must address and correct the inadequacy of the initial meeting. See Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex. App.--Waco 1997, writ denied) (illegal act was specifically remedied by action taken at later valid meeting); Fielding v. Anderson, 911 S.W.2d 858, 864 (Tex. App.--Eastland 1995, writ denied) (Act violations corrected by subsequent meeting at which vote was taken in open session). Because a fact question exists as to whether the Act was violated by the Commission in its closed meeting, we do not decide whether a cure was accomplished. CONCLUSION We hold that there exists a disputed issue of material fact concerning whether the Commission "voted" or took "final action" in closed session to eliminate the labor field representative positions and directed the agency director to implement the Commission's decision. Thus, appellee has not demonstrated it is entitled to judgment as a matter of law. Assuming the Commission did violate the Act, the power of the executive director to hire and fire Commission staff does not foreclose the possibility of voiding actions taken pursuant to the illegal vote. We do not decide whether the October 27 open meeting cured any prior violations of the Act. Because the resolution of this appeal does not depend upon our consideration of appellants' allegation of retaliatory termination, we need not discuss it. We reverse the summary judgment order and remand the cause to the trial court for further proceedings. Jan P. Patterson, Justice Before Justices Kidd, Patterson and Powers* Reversed and Remanded Filed: April 8, 1999 Do Not Publish * Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1. The Texas Workforce Commission is a state agency established to operate an integrated workforce development system. See Tex. Lab. Code Ann. § 301.001(a) (West 1996). The Commission is composed of three appointed members: a representative of labor, a representative of employers, and a representative of the public. Id. § 301.002. References to votes taken by the "Commission" refer to votes taken by these three Commission members. 2. See Tex. Gov't Code Ann. §§ 551.001-.146 (West 1994 & Supp. 1999) (hereinafter the "Act"). 3. Texas Government Code section 551.074 states that a governmental body is not required to conduct an open meeting "to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee." Tex. Gov't Code Ann. § 551.074(a)(1) (West 1994). 4. The executive director is appointed by the Commission "to administer the daily operations of the commission in compliance with federal law." Tex. Lab. Code Ann. § 301.041(a) (West 1996). 5. While the resolution of this appeal does not require us to discuss appellants' allegation that the posted agenda items were vague and did not adequately notify the public of the subject matter of the meetings, we will briefly address the issue in the interest of completeness. Section 551.041 of the Open Meetings Act requires a governmental body to "give written notice of the date, hour, place, and subject of each meeting held by the governmental body." See Tex. Gov't Code Ann. § 551.041 (West 1994). References in the Commission agenda to both Government Code section 551.074 and to agency reorganization provided an adequately detailed description of the subject to be discussed, namely the employment status of Commission employees. We find that the two posted agenda items provided full and adequate notice to the public of the Commission's intent to discuss personnel matters. See generally City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765-66 (Tex. 1991); Cox Enter., Inc. v. Board of Trustees, 706 S.W.2d 956, 958-59 (Tex. 1986). 6. In their Second Amended Petition, appellants allege that the Act violation occurred at the August 19 meeting. In their brief, appellants allege that the Act violation occurred at the September 3 meeting. The discrepancy does not affect the outcome of this appeal. 7. The Commission, in response to appellants' cross-motion for partial summary judgment and reply to the Commission's motion for summary judgment, objected to the affidavits of both Gunn and Breedlove on the basis of hearsay. The trial court did not rule on the Commission's objections. Furthermore, executive director Sheridan denied stating that the Commission "made me do it" and Commissioner O'Mahoney denied telling Boyce Breedlove the Commission had "voted 2-to-1" to eliminate the positions of labor field representative. 8. Under the relevant statute, the State Board of Insurance was the policy-making body in charge of the Department of Insurance. Act of June 6, 1991, 72d Leg., R.S., ch. 242, § 1.02, 1991 Tex. Gen. Laws 939, 941 (former Insurance Code art. 1.04(b)). The Board was required to act through the Commissioner of Insurance, whom it appointed to act as the chief executive and administrative officer of the Department; the Commissioner served at the Board's pleasure. Former Insurance Code art. 1.09(a). 9. "The trial court found that the Board violated the Open Meetings Act . . . by posting a generic, overly broad, and imprecise notice of the subject of the meetings; discussing personnel matters in a way not excepted from the Act; and failing to keep tape recording or certified agenda." Spiller v. Texas Dept. of Ins., 949 S.W.2d 548, 550 (Tex. App.--Austin 1997, writ denied). Appellee failed to challenge this finding in a cross-appeal, so this court did not review whether summary judgment was properly granted on this issue. 10. Although the parties did not contest the absence of a formal vote in closed session, the Hospital Administrator testified that the Board made it clear that "Dr. Swate needed to go." Swate v. Medina Community Hosp., 966 S.W.2d 693, 697 (Tex. App.--San Antonio 1998, pet. denied). Moreover, following the closed session, the administrator informed the assistant administrator that "he had the will of the board and [Swate was] to be terminated." Id. 11. "'Deliberation' means a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." Tex. Gov't Code Ann. § 551.001(2) (West 1994). 12. Appellants filed their original petition on September 9, 1997, more than six weeks before the alleged curative meeting. n" refer to votes taken by these three Commission members. 2. See Tex. Gov't Code Ann. §§ 551.001-.146 (West 1994 & Supp. 1999) (hereinafter the "Act"). 3. Texas Government Code section 551.074 states that a governmental body is not required to conduct an open meeting "to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee." Tex. Gov't Code Ann. § 551.074(a)(1) (West 1994). 4. The executive director is appointed by the Commission "to administer the daily operations of the commission in compliance with federal law." Tex. Lab. Code Ann. § 301.041(a) (West 1996). 5. While the resolution of this appeal does not require us to discuss appellants' allegation that the posted agenda items were vague and did not adequately notify the public of the subject matter of the meetings, we will briefly address the issue in the interest of completeness. Section 551.041 of the Open Meetings Act requires a governmental body to "give written notice of the date, hour, place, and subject of each meeting held by the governmental body." See Tex. Gov't Code Ann. § 551.041 (West 1994). References in the Commission agenda to both Government Code section 551.074 and to agency reorganization provided an adequately detailed description of the subject to be discussed, namely the employment status of Commission employees. We find that the two posted agenda items provide