BOARD MEMBERS: AUTHORITY

Board Authority

Because the board is a body corporate, members can perform no valid act except as a body at meetings properly convened and conducted. Toyah ISD v. Pecos-Barstow Indep. Sch. Dist., 466 S.W.2d 377 (Tex. App.—San Antonio, 1971, no writ); Buchele v. Woods, 528 S.W.2d 95 (Tex. App. —Tyler, 1975, no writ)

Fiduciary

Each member of a governing board has the legal responsibilities of a fiduciary in the management of funds under the control of institutions subject to the board’s control and management. Education Code 51.352(e)

Access to Information

A member of the governing board of a governmental body, including a college district board of trustees, may inspect, duplicate, or inspect and duplicate public information maintained by the governmental body if the member is acting in the member’s official capacity. Public information requested under this section shall be provided to the member

promptly and without charge. Gov’t Code 552.403(a)-(b); Atty. Gen. Op. JM-119 (1983)

Confidential Information

When there are competing confidentiality or security concerns, it may be proper for a board to establish reasonable procedures to preserve confidentiality, but the college district may not absolutely prohibit an individual board member from viewing records involving college district business that are otherwise properly available to the board as a governmental body. Atty. Gen. Op. GA-138 (2004)

Access to Information

Subject to Attorney-Client Privilege

Information subject to attorney-client privilege is not subject to disclosure to a board member unless the attorney-client relationship upon which the privilege is based applies to the member. A governmental body shall inform the member if information responsive to a request made under this section is withheld as information subject to attorney-client privilege. Gov’t Code 552.403(d)

Access to Student Records

An educational agency or institution may disclose personally identifiable information from an education record of a student without the written consent of the student required by 34 C.F.R. 99.30 if the disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests. [See FJ] 34 C.F.R. 99.30, .31(a)

Request to Redact

If requested by the board member, public information requested under this section that is confidential under law shall be redacted from the information provided to the member without charge. Gov’t Code 552.403(c)

Confidentiality Agreement

A governmental body that has been requested to provide information to a board member under this section may request the

board member who is receiving public information that is confidential under law to sign a confidentiality agreement that covers the information and requires that:

1. The information not be disclosed;

2. The information be labeled as confidential;

3. The information be kept securely; or

4. The number of copies of the information or the notes taken from the information that implicate the confidential nature of

the information be controlled, with all copies or notes that are not destroyed or returned remaining confidential and subject

to the confidentiality agreement.

Gov’t Code 552.404(a)

Determination by the Attorney General

A board member who has received a request to sign a confidentiality agreement may seek a decision about whether the information covered by the confidentiality agreement is confidential under law. A confidentiality agreement is void to the extent that the agreement covers information that is determined by the attorney general or a court to not be confidential under law. Gov’t Code 552.405(a)

Appeal

The board member or the governmental body may appeal a decision of the attorney general to a Travis County district court. Any other person may appeal a decision of the attorney general to a Travis County district court if the person claims a proprietary interest in the information affected by the decision or a privacy interest in the information that a confidentiality law or judicial decision is designed to protect. Gov’t Code 552.405(d)

Release of Information Not a Confidentiality Waiver

A governmental body, by providing public information under this section that is confidential or otherwise excepted from required disclosure under law, does not waive or affect the confidentiality of the information for purposes of state or federal law or waive the right to assert exceptions to required disclosure of the information in the future. Gov’t Code 552.404(b)

Writ of Mandamus

If a governmental body fails or refuses to comply with an applicable requirement of this section, a member of a governing board who made a request may file a motion, petition, or other appropriate pleading in a district court for a writ of mandamus to compel the body to comply with the applicable requirement. Gov’t Code 552.406(a)

Information Obtainable Under Other Law

The procedures outlined in this section do not affect:

1. The procedures under which information may be obtained under other law; or

2. The use that may be made of information obtained under other law.

Gov’t Code 552.407

Destruction of and Tampering with Records

An officer, including a board member, or employee of a local government commits a criminal offense if the officer or employee knowingly or intentionally violates Local Government Code Title 6, Subtitle C or rules under it by destroying or alienating a local government record in contravention of Subtitle C or by intentionally failing to deliver records to a successor in office as provided by Local Government Code 201.006(a). Local Gov’t Code 202.008 A person commits an offense if the person:

1. Knowingly makes a false entry in, or false alteration of, a governmental record;

2. Makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;

3. Intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;

4. Possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;

5. Makes, presents, or uses a governmental record with knowledge of its falsity; or

6. Possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

It is an affirmative defense to prosecution for possession under item 6 that the possession occurred in the actual discharge of official duties as a public servant. It is a defense to prosecution under item 1, 2, or 5 that the false entry or false information could have no effect on the government's purpose for requiring the governmental record.

Penal Code 37.10(a), (e–f)

A person commits an offense if the person willfully destroys, mutilates, removes without permission as provided by Government Code Chapter 552 (Public Information Act), or alters public information. Gov’t Code 552.351(a)

Distribution of Confidential Information

A person commits an offense if the person distributes information considered confidential under the terms of Chapter 552. Gov’t Code 552.352(a)

Protections for Acting on a

Legislative Measure

To protect the independence of state and local officers acting in a legislative capacity, a state or local officer, whether elected or appointed, including a member of the governing body of a college district, school district, or other political subdivision of this state, may not be subject to disciplinary action or a sanction, penalty, disability, or liability for:

1. An action permitted by law that the officer takes in the officer’s official capacity regarding a legislative measure;

2. Proposing, endorsing, or expressing support for or opposition to a legislative measure or taking any action permitted by law to support or oppose a legislative measure;

3. The effect of a legislative measure or of a change in law pro posed by a legislative measure on any person; or

4. A breach of duty, in connection with the member’s practice of or employment in a licensed or regulated profession or occupation, to disclose to any person information, or to obtain a waiver or consent from any person, regarding the officer’s actions relating to a legislative measure; or the substance, effects, or potential effects of a legislative measure.

Gov’t Code 572.059