Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 16, 2018

The Honorable Rafael Anchia Opinion No. KP-0205
Chair, Committee on International Trade
and Intergovernmental Affairs Re: Authority of an individual commissioner
Texas House of Representatives of the Railroad Commission to unilaterally
Post Office Box 2910 terminate or hire an Executive Director for the
Austin, Texas 78768-2910 Commission (RQ-0203-KP)

Dear Representative Anchia:

You ask five questions related.to the unilateral authority of an individual commissioner of
the Railroad Commission (the "Commission") and whether certain actions by an individual
commissioner violated the Open Meetings Act. 1 Your questions arise from events occurring at the
Commission in September of 201 7 regarding employment of its Executive Director. Request
Letter at 2. Submissions to this office in response to your request demonstrate significant
disagreement about the facts surrounding these events. 2 This office does not resolve disputed
questions of fact through the opinion process. Tex. Att'y Gen. Op. Nos. GA-1033 (2013) at 1,
JM-1098 (1989) at 3. Instead, attorney general opinions advise authorized requestors about the
status of the law. Tex. Att'y Gen. Op. Nos. KP-0124 (2016) at 2, GA-0630 (2008) at 4. Thus, in
answering your questions, we advise about the relevant laws applicable to the Commission and its
governance without addressing or determining the underlying facts involved.

Your first, second, and fourth questions ask whether Texas law allows a single
commissioner to "unilaterally terminate the Executive Director" and "unilaterally appoint an
acting Executive Director without consultation in an appropriate setting with the other two

1
See Letter from Honorable Rafael Anchia, Chair, House Comm. on Int'] Trade & Intergov'tl Affairs, to
Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 14, 2017), https://www.texasattorneygeneral.gov/
opinion/requests-for-opinion,s-rqs ("Request Letter").
2
See Letter from Alex Schoch and Vanessa Burgess, Office of Gen. Counsel, R.R. Comm'n, to Virginia
Hoelscher, Chair, Op. Comm. at 2 (Jan. 23, 2018) (explaining that the Commission's Office of General Counsel
disputes the accuracy of the facts presented in the Request Letter); Letter from Honorable Wayne Christian, Comm'r,
R.R. Comm'n, to Virginia Hoelscher, Chair, Op. Comm. at 1 (Jan. 25, 2018) ("I do not believe the Chairman of the
R.R. Comm'n of Texas 'unilaterally fired' our previous executive director."); Letter from Honorable Ryan Sitton,
Comm'r, R.R. Comm'n, to Virginia Hoelscher, Chair, Op. Comm. at 1 (Jan. 25, 2018) (explaining that the
information presented in the Request Letter "accurately describes what transpired") (letters on file with the Op.
Comm.).
The Honorable Rafael Anchia - Page 2 (KP-0205)

commissioners." Request Letter at 1. 3 Three elected officials form the Commission, and they
each serve six-year terms. TEX. CONST. art. XVI, § 30(b). The three commissioners "elect one
commissioner as the chairman." TEX. NAT. RES. CODE § 81.01002. However, the statutory
authority granted to the Commission is not bestowed upon its individual commissioners but instead
jointly bestowed upon the Commission as a whole. See id. § 81.053 ("Commission Powers"). "A
joint authority given to any number of officers or other persons may be executed by a majority of
them unless expressly provided otherwise." TEX. Gov'T CODE§ 312.004.

Furthermore, decisions entrusted to governmental bodies must be made by the body as a
whole at a properly-called meeting. Webster v. Tex. & Pac. Motor Transp. Co., 166 S.W.2d 75,
76-77 (Tex. 1942). The central requirement under the Open Meetings Act ("the Act") mandates
that"[e]very regular, special, or called meeting of a governmental body shall be open to the public,
except as provided by [the Act]." TEX. Gov'T CODE§ 551.002. 4 The Act generally defines
"meeting" as "a deliberation between a quorum of a governmental body ... during which public
business '. .. is discussed or ... the governmental body takes formal action," and it generally
defines "quorum" as "a majority of a governmental body." Id. § 551.001(4), (6). As a three-
member governmental body, the Commission creates a quorum with two commissioners.
Employment decisions regarding its executive director involve significant public business of the
Commission, and any formal action taken in that regard must occur at an open meeting. Thus, a
single commissioner lacks authority to unilaterally terminate or hire an executive director without
deliberation and a decision from the Commission at a properly-called meeting in compliance with
the Open Meetings Act.

In your third question, you ask whether giving an employee a choice of resigning or being
fired constitutes termination, and if so, whether that constitutes official agency action. Request
Letter at 1. "ConstruGtive discharge occurs when an employee has quit her job under
circumstances that are treated as an involuntary termination of employment." Haley v. Alliance
Compressor, LLC, 391 F.3d 644, 649 (5th Cir. 2004). Texas law recognizes the doctrine of
constructive discharge in certain instances. Epps v. NCNB Tex., 7 F.3d 44, 46 (5th Cir. 1993)
(citing Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex. App.-Houston [14 Dist.]
1991, no writ). However, an ultimatum to resign or be terminated will not always constitute
constructive discharge. See, e.g., Parker v. Bd. of Regents of Tulsa Junior Coll., 981 F.2d 1159,
1162 (10th Cir. 1992); see also Terban v. Dep't of Energy, 216 F.3d 1021, 1026 (Fed. Cir. 2000)
(explaining that a resignation is not involuntary merely because an employee faces a choice
between resigning or being terminated). A court will consider numerous factors before it
determines that a resignation was involuntary. See Haley, 391 F.3d at 649-50. Thus, whether the
choice of resigning or being fired constitutes a termination in any given circumstance involves fact
issues that cannot be resolved through the opinion process.

3
Whether unilateral termination or unilateral appointment of an executive director in fact occurred at the
Commission is not a question we can resolve, and nothing in this opinion should be construed to suggest a finding
on this issue.
4
"Govemmental body" includes a "commission ... within the executive or legislative branch of state
government that is directed by one or more elected or appointed members" and therefore includes the Commission.
TEX. GOV'T CODE § 551.00 I (3)(A).
The Honorable Rafael Anchia - Page 3 (KP-0205)

In your final question, you ask whether written communication attempted by one
commissioner on the dais at an open meeting, specifically a note passed from one commissioner
to another, constitutes a violation of the Act. Request Letter at 1. Previous opinions from this
office consistently conclude that written communication between a quorum of members of a
governmental body can, in certain instances, constitute an illegal meeting under the Open Meetings
Act. See Tex. Att'y Gen. Op. Nos. GA-0896 (2011) at 4 ("Electronic communications could,
depending on the facts of a particular case, constitute a deliberation and a meeting for purposes of
the Texas Open Meetings Act."), JC-0307 (2000) at 5-6 (concluding that the term "deliberation"
is not limited to only spoken words), DM-95 (1992) at 5-6 (concluding that any deliberation
between a quorum related to a jointly signed statement is a meeting subject to the Act).

For a communication, oral or written, to constitute a meeting under the Act, it must address
public business, and it must involve a deliberation among a quorum of the governmental body.
See Tex. Att'y Gen. Op. No. GA-0989 (2013) at 2-3 (concluding that a consultation between one
member of a governmental body and an employee does not constitute a meeting subject to the
Act). The Act defines "deliberation" as a "verbal exchange." TEX. Gov'T CODE§ 551.001(2). A
"communication attempted," as you describe, may not be sufficient, by itself, to constitute a
deliberation. For an unlawful meeting to occur in the circumstances you describe, the
communication must be received and deliberated, and it must involve the public business of the
governing body. Each of these elements raises fact questions that are not amenable to resolution
in an attorney general opinion. See Foreman v. Whitty, 392 S.W.3d 265, 276 (Tex. App.-
San Antonio 2012, no pet.) (noting fact issues the evidence raised about whether a communication
was received and deliberated by a quorum and whether it involved public business); see also Tex.
Att'y Gen. Op. No. JC-0307 (2000) at 1 ("We cannot and do not resolve whether ... any person
has actually violated the Open Meetings Act. Such a determination would require the investigation
and resolution of fact questions, which cannot be done in an attorney general opinion.").
The Honorable Rafael Anchia - Page 4 (KP-0205)

SUMMARY

A single member of the Railroad Commission lacks
authority to unilaterally terminate or hire an executive director
without deliberation and a decision from the Commission as a whole
at a properly-called meeting.

Whether the choice of resigning or being fired constitutes a
termination in any given circumstance involves fact issues that
cannot be resolved through the opinion process.

Whether a written communication sent from one
commissioner to another involves a violation of the Open Meetings
Act involves fact issues that cannot be resolved through the opinion
process.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee