Can a school principal or superintendent force a teacher's grievance hearing to be held in a closed executive session?

Texas AG Opinion JM-1191: Can a School Board Force a Teacher's Grievance Into a Closed Session?

Plain-English summary

A teacher at the West Orange-Cove Consolidated Independent School District filed a grievance disputing his evaluation and complaining about how the principal and superintendent had handled it. The teacher wanted his grievance hearing before the school board held in open session, citing the "personnel" exception in the Texas Open Meetings Act. The principal and superintendent, who were the subject of some of his complaints, wanted the hearing closed, and pointed to a district policy requiring executive session whenever a grievance involves complaints about another employee.

The Attorney General sided with the teacher. The Open Meetings Act's section 2(g) personnel exception is permissive, not mandatory: it lets a school board choose to meet in closed session over personnel matters, but does not require it. And critically, an employee who is the actual subject of the board's personnel deliberations has an affirmative right to demand an open hearing if he asks for one. Because the teacher requested an open hearing about his own evaluation, the board had to give it to him, and the district's policy requiring a closed session in this situation was invalid to the extent it conflicted with the Open Meetings Act.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

Teachers and school employees pursuing grievances: The opinion confirmed that an employee who is the subject of a personnel-related deliberation under section 2(g) of the Open Meetings Act has a right to insist on an open hearing, and that a school board cannot override that request by relying on the Act's permissive closed-session option.

School principals and superintendents involved in a grievance as accused parties: The opinion held that being named in a teacher's complaint did not give the principal or superintendent a right to force the hearing into executive session, because the board was not proposing to "hear complaints or charges" against them within the meaning of section 2(g); the hearing concerned the teacher's grievance about his own evaluation.

School boards and district policymakers: The opinion found that the West Orange-Cove district's policy, which mandated executive session whenever a grievance involved complaints about another employee, was invalid to the extent it denied an employee his statutory right under section 2(g) to open his own hearing.

Common questions

Does the Open Meetings Act require a school board to hold personnel hearings behind closed doors?
No. The opinion explained that section 2(g) of the Open Meetings Act permits, but does not require, a school board to meet in executive session over matters like a personnel evaluation, discipline, or grievance.

If a teacher's grievance also accuses the principal of wrongdoing, can the principal demand a closed hearing?
The opinion concluded no, at least on the facts presented: the board was not proposing to hear "complaints or charges" against the principal and superintendent within the meaning of section 2(g); the hearing was about the teacher's own grievance regarding his evaluation, and the principal's and superintendent's actions were incidental to that grievance.

Can a school district have a policy that automatically sends grievances involving complaints about another employee into closed session?
The opinion found such a policy invalid to the extent it conflicted with an employee's right under section 2(g) to request an open hearing about his own case.

What happens if the grievance later turns into actual charges against the principal or superintendent?
The opinion noted that if the board did want to examine charges or complaints against the officials themselves, it could only do so in compliance with applicable statutes and rules, citing V.T.C.S. art. 6252-17, § 3A(a).

Background and statutory framework

Texas school districts are required by State Board of Education rule to adopt a written grievance policy allowing employees to present complaints about wages, hours, or working conditions, with a process running through administrative levels up to the local board of trustees. School board meetings, including grievance hearings before the board, are subject to the Open Meetings Act, V.T.C.S. art. 6252-17, which generally requires open meetings subject to specific exceptions.

Section 2(g) of the Act is one such exception: it provides that nothing in the Act requires a governmental body to hold open meetings involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee, or to hear complaints or charges against that officer or employee, "unless such officer or employee requests a public hearing." The opinion read this language in two parts. First, the exception is permissive: a board may choose to close such a session, but nothing forces it to. Second, and separately, an employee who is the actual subject of the personnel deliberation has an affirmative right to an open hearing if he requests one; that right cannot be overridden by the board's own preference or by a district policy.

The opinion distinguished between the teacher, who was the employee whose evaluation and status were actually being deliberated, and the principal and superintendent, who were only incidentally implicated because the teacher's grievance criticized their handling of his evaluation. Because the board was not proposing to hear "complaints or charges" against the principal and superintendent as the subject of its own deliberation, their preference for a closed session did not control; only the teacher's right under section 2(g), as the actual subject of the hearing, governed. The opinion cited a passage from a prior opinion on a governmental body's discretion whether to close a session for selecting its own officers, and looked to Texas case law establishing that a public employee's own personnel hearing must be open if that employee, and not another party, invokes the statute's public-hearing option.

Citations

Statutes:

• V.T.C.S. art. 6252-17, § 1(c) (Open Meetings Act, board meetings subject to open meetings requirement)
• V.T.C.S. art. 6252-17, § 2(g) (personnel exception; right to request public hearing)
• V.T.C.S. art. 6252-17, § 3A(a)
• 19 T.A.C. § 61.232 (school district grievance policy requirement)
• 19 T.A.C. § 61.232(a)(2)
• 19 T.A.C. § 61.232(a)(3)
• 19 T.A.C. § 61.231 (minimum procedural standards for hearings before local boards)
• 19 T.A.C. § 149.43(d)(2)
• Educ. Code §§ 11.24, 13.323

Cases:

• James v. Hitchcock Indep. School Dist., 742 S.W.2d 701 (Tex. App.-Houston [1st Dist.] 1987, writ denied)
• City of Dallas v. Parker, 737 S.W.2d 845 (Tex. App.-Dallas 1987, no writ)
• Corpus Christi Classroom Teachers Ass'n v. Corpus Christi Indep. School Dist., 535 S.W.2d 429 (Tex. Civ. App.-Corpus Christi 1976, no writ)
• Anderson v. Canyon I.S.D., 412 S.W.2d 387 (Tex. Civ. App.-Amarillo 1967, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1191
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1191.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Honorable Stephen C. Howard
Orange County Attorney
County Courthouse
Orange, Texas 77630

Opinion No. JM-1191

Re: Whether section 2(g) of article 6252-17, V.T.C.S., authorizes the school principal and school district superintendent to require a teacher's grievance to be heard in executive session (RQ-2027)

Dear Mr. Howard:

You inform us that an employee of the West Orange-Cove Consolidated Independent School District has filed a grievance about his evaluation. The statement of grievance, which you have submitted to us, contests the substance of the evaluation and complains about the principal's and the superintendent's actions in the evaluation process.

By rule of the State Board of Education, each public school district in the state must adopt a written policy establishing a grievance procedure for employees to present complaints concerning wages, hours, or conditions of work. 19 T.A.C. § 61.232; see Educ. Code §§ 11.24, 13.323; see also 19 T.A.C. § 149.43(d)(2). The procedure must allow for presenting the grievance to the various administrative levels of the school district. 19 T.A.C. § 61.232(a)(2). It must also "provide a reasonable opportunity for presentment to the local board of trustees if the employee is not satisfied with the response to the grievance at the final administrative level." Id. § 61.232(a)(3). Section 61.231 of Title 19, Texas Administrative Code, sets out the minimum procedural standards for hearings before local boards. School board meetings are subject to the Open Meetings Act. V.T.C.S. art. 6252-17, § 1(c).

The employee has requested that his hearing take place in an open session in accordance with the "personnel" exception of the Open Meetings Act:

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.

V.T.C.S. art. 6252-17, § 2(g) (emphasis added).

However, the principal and superintendent insist that the grievance hearing should be conducted in executive session. The grievant has charged them with violating his constitutional rights as well as district policies. Since the Open Meetings Act allows the school board to meet in closed session "to hear complaints or charges" against an officer or employee, "unless such officer or employee requests a public hearing," the principal and superintendent believe that they are entitled to an executive session hearing about the grievant's charges against them. They also rely on the following policy of the West Orange-Cove Consolidated Independent School District regarding employee grievances:

EXECUTIVE SESSION - If the complaint involves the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of the employee bringing the complaint, it shall be heard by the Board in executive session, unless the employee requests it to be public. If the complaint involves complaints or charges about another employee, it shall be heard by the Board in executive session unless the employee complained about requests it to be heard in public. (Emphasis added.)

The Open Meetings Act requires all meetings to be open, with certain exceptions. Section 2(g) does not require a governmental body to deliberate in executive session in cases involving the personnel matters set out therein. Attorney General Opinion H-1047 (1977), which concerned a governmental body's appointment of its officers, stated as follows:

[W]hile section 2(g) of the Open Meetings Act generally permits public bodies to consider the selection of officers of a governing board in a closed session, it certainly does not require that a meeting of this kind be closed. Rather, such a meeting may be opened to the public either by request of a prospective appointee, by charter or rule, or by a determination by the public body that the process of selecting its officers should be fully open to public scrutiny.

Attorney General Opinion H-1047 at 2.

A public employee who is the subject of deliberations has no right under section 2(g) to insist on a closed session. In contrast, a public employee who is the subject of a hearing described in section 2(g) does have a right to insist on a public hearing if he makes an appropriate request for it. See James v. Hitchcock Indep. School Dist., 742 S.W.2d 701 (Tex. App.-Houston [1st Dist.] 1987, writ denied); City of Dallas v. Parker, 737 S.W.2d 845 (Tex. App.-Dallas 1987, no writ); Corpus Christi Classroom Teachers Ass'n v. Corpus Christi Indep. School Dist., 535 S.W.2d 429 (Tex. Civ. App.-Corpus Christi 1976, no writ). The board of trustees must hear the teacher's grievance in open session despite the objections of the superintendent and principal. To the extent that the school district's rule denies an employee his right under section 2(g) to open his hearing before the board, it is invalid as inconsistent with the Open Meetings Act. See Anderson v. Canyon I.S.D., 412 S.W.2d 387 (Tex. Civ. App.-Amarillo 1967, no writ).

Moreover, based on the facts before us, the board does not propose "to hear complaints or charges" against the superintendent and principal within the meaning of section 2(g). "Hearing" has been defined as follows:

Proceeding of relative formality with definite issues of fact or of law to be tried, in which parties proceeded against have right to be heard . . . .

Black's Law Dictionary 649 (5th ed. 1979).

The board is holding a hearing about the teacher's grievance concerning his evaluation, as required by rule of the State Board of Education. The teacher's complaints about the principal and superintendent are incidental to his grievance against the school district, which necessarily acts through its agents. If the board did plan "to hear complaints or charges" against the two officials, we would expect the board to have notified them of the charges and to give them an opportunity to answer them in accordance with the applicable school district policies. The employee before the school board is the teacher who disputes the correctness of his evaluation, not the officials who allegedly engaged in mistaken or wrongful conduct when they gave him that evaluation. If the grievance raises charges and complaints about the principal's and the superintendent's conduct that the board wishes to examine, it may do so only in compliance with applicable statutes and rules. See, e.g., V.T.C.S. art. 6252-17, § 3A(a).

SUMMARY

Section 2(g) of the Open Meetings Act, article 6252-17, V.T.C.S., permits, but does not require, a school board of trustees to hold an executive session to consider a teacher's grievance. An employee who is the subject of deliberations under section 2(g) has a right to an open hearing, but has no right to insist upon a closed hearing.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan Garrison
Assistant Attorney General