Q: Whenever I send an email to my board members as a group, I have a practice of reminding them not to “Reply All” in order to avoid a walking quorum. Sometimes, one or two board members will forget and still select Reply All when responding. Should we be concerned with this practice if it’s only one or two replies (less than a quorum)?
A: Yes. Senate Bill 1640 was enacted to clarify the prohibition again “walking quorums.” The new law applies to a “series of communications” even when less than a quorum actually engages in the communications.
A Texas court first addressed the concept of a walking quorum in 1985 when it held that members of a school board of trustees violated the Open Meetings Act by holding a series of informal telephone conferences to conduct district business that, in total, encompassed a quorum of trustees, even though a quorum was never physically present at one location. Since 1985, the Attorney General has analyzed dozens of similar cases, and has recognized a general definition of a “walking quorum” to include “a series of overlapping meetings, or telephone conferences when a quorum of members are not present and together in the same room at the same time but, when taken as a whole, such communications would amount to deliberations outside of the requirements of the Open Meetings Act.”
This typically occurs when one member of a governmental body has several conversations with other members regarding a particular matter of government business. When enough members have conferred on the matter to constitute a quorum (even if done individually), the Act is violated. Violating the prohibition against “walking quorums” has historically carried criminal liability for public official who knowingly engages in the practice.
Senate Bill 1640 clarifies the prohibition against these serial or overlapping communications by adding “written communications” to the definition of deliberation under TOMA. Additionally, the Bill strengthens the law to now include civil liability for public officials who participate in group communications from varied locations, such as telephone, email, text messages or even social media strings. The new law provides that a public official commits a misdemeanor offense if he/she:
(1) knowingly engages in at least one communication among a series of communications that each occur outside of a meeting authorized by this chapter and that concern an issue within the jurisdiction of the governmental body in which the members engaging in the individual communications constitute fewer than a quorum of members;
(2) and knew at the time the member engaged in the communication that the series of communications:
a. involved or would involve a quorum;
b. and would constitute a deliberation once a quorum of members engaged in the series of communications.”
Tex. Gov’t Code § 551.143(a).
Applying SB 1640 to the fact pattern presented in the question above would implicate any trustee who “Replies All” to a group communication with a substantive/deliberative message because the board member is “engaging” in the communication. The key distinction made in the law lies in engaging in the communications versus simply being part of the recipient group.
As a reminder, walking quorums can also be created through individual communications, where one board member talks separately with three or more other trustees about the same school business topic. This is the type of “traditional” walking quorum that has been prohibited for some time; however, written communications are now explicitly included in the law.
To ensure compliance with Senate Bill 1640, we recommend that your Board-Superintendent team utilize an application such as Remind 101, or similar software, that allows the author of a communication to send a group message while turning the “Reply” feature off. This effectively eliminates the ability (even if done accidentally) for a trustee to reply to the entire group. Additionally, check with your district’s technology staff to determine whether the “Reply” feature can be toggled on/off from your regular district email server (such as Gmail or Outlook). Any specific concerns regarding a pattern of communications should be forwarded to your school district’s attorney to ensure compliance with the law.