Off Topic, Out of Bounds: How to handle non-agenda items during a public meeting

by | Sep 5, 2022 | Texas Open Meetings Act

Members of the public (and members of the governmental body itself) sometimes raise an issue during a public meeting that was not included on the posted agenda for the meeting. When a non-agenda item is raised, the safest response is no response. If members of the governmental body wish to provide some response to a non-agenda item, the response must be very limited. The governmental body cannot deliberate or make a decision about a non-agenda item, other than adding it to the agenda for a future meeting. Action taken on a non-agenda item is voidable under the Texas Open Meetings Act.

Under Section 551.007 of the Texas Open Meetings Act (TOMA), each member of the public who wishes to address a governing body regarding an item on the posted agenda must be allowed to do so at the meeting.[1] The governmental body may adopt “reasonable rules” regarding the public comment portion of the meeting, including rules that limit when and for how long a member of the public is allowed to speak. The members of the governmental body may, but are not required to, respond to a public comment about an agenda item.

Some governmental bodies provide for both public comment on agenda items and an open forum for non-agenda items. According to the Texas Attorney General, “the governmental body has more latitude to regulate an open forum provided its rules are viewpoint neutral and otherwise reasonable.”

Public comment sessions “have been an integral part of public meetings since well before the adoption of the Open Meetings Act in 1967.”[2] But “public comment sessions pose notable difficulties in predicting the subject matter of citizen comments and questions.” A governmental body cannot “divine or foresee the myriad of matters its constituents wish to bring to its attention.”

When a member of the public (or member of the governmental body) raises a topic or asks a question about a subject that is not included in the posted agenda for the public meeting, the safest response is no response. If members of the governmental body wish to provide some response to a comment or inquiry about a non-agenda item, the response must be very limited.

Under Section 551.042 of TOMA, members of the governmental body may respond to inquiries about non-agenda items in the following ways:

  • Provide specific factual information. For example, “The deadline for submitting bids on that request for proposals is June 10, 2022.”
  • Refer to existing policy. For example, “To submit a complaint about a property that does not have a Short Term Rental permit, please call 3-1-1 or submit a complaint on the city’s website, in accordance with the city’s Short Term Rental ordinance and policy.”
  • Place the subject on a future agenda. Any deliberation of or decision about the subject of the inquiry must be limited to a proposal to place the subject on the agenda for a subsequent meeting. For example, the chair might ask “Does any board member have any objections to placing this item for deliberation on the agenda for next week’s meeting?” and then respond to the member of the public that “The board [will/will not] add this topic to the agenda of the next board meeting.”[3]

The case of Gardner v. Herring, 21 S.W.3d 767 (Tex. App.—Amarillo 2000, no pet.) provides a good example of an exchange that complies with Section 551.042. During a public meeting of a school board, a Board member raised the subject of teen pregnancy (which was not on the agenda). Other Board members responded by “giving information about the District’s curriculum,” making “general comments about the pregnancy rate,” and asking whether the Board member would care to have the matter placed on the agenda for the next Board meeting. The court held that these responses complied with Section 551.042.

If, prior to a public meeting, the governmental body is aware or reasonably should have been aware of specific topics that will be raised in public comment or by a member of the government body, such topic(s) should be included in the posted notice for the meeting.[4] If a topic is included in the agenda, then Section 551.042 does not apply and the governmental body may deliberate and act on the matter as permitted by TOMA.

Section 551.042 provides an outlet for a governmental body to address the public’s concerns on non-agenda items without violating TOMA’s notice requirements; it allows a limited response to an inquiry about a non-agenda item while preventing “deliberation” or “decision” about the subject matter of the inquiry.[5] If a governmental body does make a decision or take action on a non-agenda item, such action is voidable.[6]

[1] Tex. Gov’t Code § 551.007(b). Section 551.007 does not apply to state agencies. Tex. Gov’t Code §§ 551.007(a); 551.001(3).

[2] Op. Tex. Att’y Gen. No. JC-0169 at 4 (2000).

[3] Tex. Gov’t Code § 551.042.

[4] Op. Tex. Att’y Gen. No. JC-0169 at 4 (2000).

[5] Hays Cnty. Water Planning P’ship v. Hays Cnty., Tex., 41 S.W.3d 174, 181 (Tex. App.—Austin 2001, pet. denied) (citing Op. Tex. Att’y Gen. No. JC-0169 (2000)); Stratta v. Roe, 961 F.3d 340, 362 (5th Cir. 2020).

[6] Tex. Gov’t Code § 551.141.

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