Open Meetings: What constitutes a quorum?
In the spirit of transparency, the Texas Open Meetings Act (TOMA) was adopted to help make governmental decision-making accessible to the public. Charter schools, as a qualifying governmental body according to TEC 12.1051(a), must adhere to the regulations and responsibilities outlined in the act.
One of the important definitions outlined in the TOMA is that of a meeting, which is defined as occurring anytime a quorum of the Board gathers to discuss school business or receive information on school related topics. That said, it is possible for a group of Board members to talk about school policy or related topics at some unplanned (or unannounced time) and unintentionally be in violation of the TOMA! This is something to watch out for, and a critical step in knowing what to watch out for is understanding what constitutes a quorum.
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What is a quorum?
A quorum is defined as a majority of the Board. For example, this could be three members of a five-person Board, four members of a seven-person Board, etc.
It is important to keep in mind that being present in a quorum itself is not prohibited. It is the discussion of school business and school topics, even receiving information about school topics, that is prohibited outside of the public meeting setting. Any deliberation about school business constitutes the holding of a meeting – whether or not the Board officially records it that way.
There are times the Board may be gathered in a quorum, when it is acceptable. An example is attendance at a purely social gathering, like a retirement party, provided that the Board is very careful not to discuss school business.
The Attorney General has identified a violation of the TOMA referred to as a “walking quorum.” This occurs when two or more members of the Board get together or a third person not on the Board communicates with a member, and the subject matter of the discussion is then communicated to other members of the Board in a “daisy chain” fashion. This is not permitted and is classified as a violation of the TOMA.
What about email and telephone exchanges?
Polling Board members by phone and/or email violates the TOMA, as that is seen as conducting school business outside of an Open Meeting. Preliminary information may be shared via email, as long as it is shared only for individual consideration — not for discussion, deliberation, or decision making. An example would be the Superintendent emailing the full Board a contract to review prior to meeting to vote on the acceptance of the contract. In that case, the Board should not reply and exchange comments, yet simply receive the information.
Can a Board group ever gather outside of posted meetings?
It is acceptable for the Board to gather to discuss school business in groups smaller than a quorum. This is common with task-forces like subcommittees which advise and report to the Board, but do not independently hold decision making power.
Allowances for Videoconferencing into Meetings
Board members may participate in the meeting, as part of the quorum, so long as the meeting is properly noticed as a videoconference, a presiding member is physically at the meeting location, the member on the videoconference s clearly visible and audible, and the conference platform allows for 2-way communication.