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Concurrently Scheduling Online and In-Person Public Meetings under the Texas Open Meetings Act

Certain laws require cities, counties, and other governmental entities to give advance public notice prior to taking certain actions—usually holding a public hearing. Sometimes, that notice must be published in a newspaper, posted on a website, or even mailed directly to certain interested parties.

Typically, there is nothing particularly challenging about giving advance notice as the law requires; but, during the current COVID-19 pandemic, some governmental entities have become subject to a certain risk, whether they have recognized it or not. Specifically, governmental bodies subject to the Texas Open Meetings Act have been authorized to hold public meetings by telephone or videoconference since March 16, 2020, when the Texas Governor temporary suspended certain provisions of the Act. However, because those suspensions are in effect until terminated by the Office of the Governor, or until governor’s the March 13, 2020 disaster declaration is lifted or expires, an anticipated virtual meeting may become impermissible after advance notice of it has been given.

For example, one of the longest lead times for a notice is the notice required by Section 312.207 of the Texas Tax Code. That section requires notice of a meeting at which a tax abatement agreement is to be considered for approval to be given 30 days before the scheduled time for the meeting. Now, let us suppose that, in accordance with section 312.207, a city wants to give notice today for a meeting to be held in 30 days for the purpose of considering a tax abatement agreement. The city desires to hold that meeting by videoconference, as is currently possible under the suspended Open Meetings Act provisions, but it has no assurance that a videoconference meeting will still be allowed 30 days from now.

If, during those intervening 30 days, the governor’s disaster declaration is lifted or expires, or if the governor terminates the suspension of the Open Meetings Act provisions, then all meetings would need to be held in-person again. So, what may the city do to provide for such a contingency? It can give notice of two alternative meetings to be held 30 days from now, for which I have facetiously coined the term “Schrödinger’s notice.”

A Schrödinger’s notice is basically advance notice of two alternative meetings or public hearings, each of which is given in case the other cannot be held as planned. In the pandemic context, if virtual meetings are still permitted at the time the virtual meeting was noticed for, then the virtual meeting or hearing can be held as planned. However, if the suspended Open Meetings Act provisions have come back into effect in the interim, then the alternative, in-person meeting or hearing may be held instead.

The Schrödinger’s notice technique utilizes the premise, written about in a previous blog, that a meeting need not ultimately be held even after notice of it has been given. However, to mitigate the undesirable consequences of not holding a meeting as noticed, it is advisable to cancel the notice of whichever meeting will not be held as soon as that fact is foreseeable, and perhaps to even provide a potential cancellation disclaimer in the original notice itself.

I have an inkling that the governor will terminate the suspension of the Open Meetings Act provisions soon, mostly because I think it would be unpalatable for the public if election results were canvassed or if elected officials qualified for office during a telephone or videoconference meeting. Therefore, there may not be much time left to utilize the Schrödinger’s notice for a virtual meeting, but there may be some use for it in contexts other than a pandemic, such as when the future availability of a meeting place is uncertain.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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