City of Abilene v. Shackelford, 5181

• Decision Date: 31 August 1978
• Docket Number: No. 5181,5181
• Citation: 572 S.W.2d 742
• Parties: 4 Media L. Rep. 1974 The CITY OF ABILENE et al., Appellants, v. Jerry SHACKELFORD et al., Appellees.
• Court: Texas Court of Appeals

Page 742

572 S.W.2d 742

4 Media L. Rep. 1974

The CITY OF ABILENE et al., Appellants, v. Jerry SHACKELFORD et al., Appellees.

No. 5181.

Court of Civil Appeals of Texas, Eastland.

Aug. 31, 1978.

Rehearing Denied Nov. 2, 1978.

David M. Wolpin, Asst. City Atty., Abilene, for appellants.

Michael S. Baskerville, McMahon, Smart, Wilson, Surovik & Suttle, Abilene, for appellees.

McCLOUD, Chief Justice.

At issue is the standing of members of the "news media" to challenge a closed meeting by an alleged governmental body, and the failure of such governmental body to produce public records of such closed meeting, allegedly in violation of charter provisions and statutory enactments.

Plaintiffs, Jerry Shackelford, Abilene Radio and Television Company d/b/a KRBC Television, and Reporter Publishing Company d/b/a Abilene Reporter News, sued defendants, The City of Abilene, The Council of the City of Abilene, Fred Lee Hughes, Joe H. Alcorta, Abe Allen, Pat Agnew, George Stowe, Emil Ogden and Kathy Webster, in their official capacities as members of the Council, the Equal Employment Opportunity Board of the City of Abilene, Van Boozer, Jorge Solis, Nelson Wilson, Jimmy McNeil and Cynthia McDaniel, in their official capacities as members of the Board, seeking a declaratory judgment and injunction, alleging that defendants violated Tex.Rev.Civ.Stat. arts. 6252-17 (Open Meetings Act) and 6252-17a (Open Records Act), and the Charter of the City.

The controversy arose as a result of an employment discrimination complaint filed by Wally Gutierrez, an employee of the City. Following a nonjury trial, based on stipulated facts, the trial court rendered judgment declaring, among other things, that pursuant to Section 122 of the City Charter all meetings of the Council of the City of Abilene and all boards or commissions appointed by the Council must be in all respects open to the public and that minutes of all such meetings must be kept and constitute public records; that the Equal Employment Opportunity Board, for the purposes of Section 122 of the City Charter, is a board appointed by the Council; that the Board met in closed session on November 30, 1977, contrary to and in violation of Section 122 of the City Charter; that the Board failed to keep, and to thereafter produce as public records, minutes of the closed meeting held on November 30, 1977, contrary to and in violation of Sections 122 and 123 of the City Charter and Article 6252-17a; and, that all actions taken and decisions reached by the Board during the closed meeting on November 30, 1977, are void. The court enjoined defendants from conducting any further closed meetings with respect to the employment discrimination complaint filed by Gutierrez; taking any vote or reaching any decision in any meeting not open to the public with respect to such complaint; ratifying any decision or vote previously reached in any closed meeting with respect to such complaint; and, implementing or attempting to implement any decision previously reached in any meeting closed to the public with respect to the employment discrimination complaint.

The stipulated facts reveal that on November 29, 1977, the Equal Employment Opportunity Board, which was created as a part of the Affirmative Action Plan of the City of Abilene, held an open meeting attended by the "media" to consider the complaint of alleged employment discrimination filed by Gutierrez. Following the presentation of evidence and arguments, the Board, after being advised by the City Attorney and discussing the "Charter" and "Open Meetings Act", asked the complainant if he would consent to deliberation in private. He stated that would be fine. The Board deliberated approximately 15 minutes, then came back into open session and announced that it could not reach a decision. The next night, November 30, 1977, a second meeting of the Board was convened in open session. The "media" was also present at the meeting. The Board discussed possible conflicts between the Charter and the Open Meetings Act. The City Attorney advised the Board they could meet in private session pursuant to the Open Meetings Act. The Board members asked the complainant if he preferred an open or closed meeting. Gutierrez told the Board he would prefer that the Board meet privately. The City Attorney advised the Board that a formal public vote as set out in Section 2(l) of the Open Meetings Act would have to take place before the vote could be final. The Board and the complainant discussed when the Board's final report should be formally released. Gutierrez asked that he be given some time to examine the report before it was formally released to the media. The City Attorney stated the report must become public five days after it was decided upon, pursuant to the provisions of the Affirmative Action Plan of the City. Based upon the complainant's request, the Board agreed to delay five days before releasing the report, pursuant to the provisions of the Affirmative Action Plan. The Board returned into closed session and after deliberating for sometime, returned to open session and announced publicly that it had made a decision in closed session and would have its recommendation typed and return on December 5, 1977. The nature of the decision was not revealed. One of the Board members took notes during the closed session. The Board announced following its closed meeting on November 30 that it would have a formal typed recommendation ready for presentation to the City Manager and the complainant on December 5, 1977, and pursuant to the provisions of the Affirmative Action Plan, the written decision would be made public five days after the December 5, 1977 date. Plaintiffs filed their original petition in the instant suit at approximately 5:05 p. m., and the Board, which met at 7:30 p. m. on December 5 did not take any further action with respect to the complaint or the Board's report thereon, because of a temporary restraining order issued by the court. The Chairman of the Board has since that date kept the Board's report in his custody and it has not been released. On the morning of December 5, 1977, prior to the filing of plaintiffs' suit later that afternoon, Jerry Shackelford, an investigative and reporting newsman employed by Abilene Radio and Television Company, presented a written request to the Chairman of the Board requesting the custodian to produce for inspection the minutes of the November 30 closed meeting. The requested information was not furnished to Shackelford. Due to the issuance of the trial court's temporary restraining order, and the court's subsequent modified restraining order, the Board has not revealed to any person the decision reached in the closed meeting on November 30, 1977, nor has the decision been in any way implemented or acted upon pursuant to such restraining order. The complaint filed by Gutierrez remains pending and awaiting final action by the Board.

The Charter of the City of Abilene provides:

"Section 122: All meetings of the Council and all Boards or Commissions appointed by the Council shall be open to the public. Minutes of all such meetings shall be kept and such minutes shall constitute public records."

"Section 123. All public records of every office, department or agency of the City shall be open to inspection by any citizen at all reasonable times, provided that such police records, vital statistics records, or any other records which are closed to the public by law shall not be considered public records for the purpose of this Section."

Article 6252-17, the Open Meetings Act, provides in part:

"Sec. 2. (a) Except as otherwise provided in this Act or specifically permitted in the Constitution, every regular, special, or called meeting or session of every governmental body shall be open to the public; and no closed or executive meeting or session of any governmental body for any of the purposes for which closed or executive meetings or sessions are hereinafter authorized shall be held unless the governmental body has first been convened in open meeting or session for which notice has been given as hereinafter provided and during which open meeting or session the presiding officer has publicly announced that a closed or executive meeting or session will be held and identified the section or sections under this Act authorizing the holding of such closed or executive session.

(g) Nothing in this Act shall be construed to require governmental bodies to hold meetings open to the public in cases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints or charges against such officer or employee, unless such officer or employee requests a public hearing.

(k) Nothing in this Act shall be construed to allow a closed meeting of a governing body where such closed meeting is prohibited, or where open meetings are required, by charter."

Article 6252-17a, the Open Records Act, provides in part:

"Sec. 3. (a) All information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public during normal business hours of any governmental body, with the following exceptions only: . . ."

Plaintiffs contend that the Board, in holding the closed meeting on November 30, 1977, and in failing to keep and produce the minutes of the closed meeting, violated Sections 122 and 123 of the City Charter and Article 6252-17 (Open Meetings Act). We do not reach these issues. Plaintiffs also contend that the Board violated Article 6252-17a (Open Records Act). We disagree.

Defendants first argue that plaintiffs failed to allege facts showing that they had standing to seek injunctive or declaratory relief under Sections 122 and 123 of the City Charter or Article 6252-17 because they failed to allege they suffered a...