By Kevin Lungwitz

Years ago, school employees learned parents could request all documents—actual paper documents—regarding their child. School employees made sure those documents were clean, neat and professional. So, school employees moved their more candid conversations to email, until they learned parents could also request those under the Texas Public Information Act (PIA). So, school employees moved their candid conversations to text messages, and that is more or less where we are today. Many school employees think their text messages are “private” if they are made on their own phone, on their own time, and through their own phone service. But those facts do not matter in determining whether the text message is private or public.

“You Mean the Angry Parent or Teacher Might Be Able to See the Snarky Texts Between My Assistant Principal and Me?”
Yes. Whether information is public or private does not depend on whether the school district maintains the information or whether the information is contained on your private phone. The snarky—and certainly quick-witted—text to your AP about a student, parent or other employee might very well be construed as “public information” if it was made, transmitted, maintained or received in connection with the school district’s official business. Just because the school district does not possess the information does not make it private.

In Adkisson v. Paxton, a Texas court of appeals considered whether emails related to a county commissioner’s official capacity from his personal email accounts were public. The court concluded they were.1

In recent years, the definition of “public information” in the PIA was amended to include: “any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.” 2 The definition of “information . . . in connection with the transaction of official business” was amended to include:

information . . . created by, transmitted to, received by, or maintained by an … employee of the governmental body in the … employee’s official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body, and pertains to official business of the governmental body.3

As examples, your text to one of your very good teachers, sent at night, from your house, from your phone, using your cell phone service, stating, “After meeting with the Dad today, it is easy to see that the acorn did not fall far from the tree lol!”; and, your AP’s text message to you after a grievance meeting earlier that morning, that, “Old Miss Crabtree sure lived up to her name today lol!” might be disclosable under the PIA.

To Make Matters Worse, You May Have to Retain the Text Messages in Compliance with Document Retention Policies and Laws
The government is required to maintain certain public information for prescribed periods of time pursuant to state law, which will not be unpacked in this article.4 Suffice it to say, it can be confusing. In 2019, the PIA was amended to say:

A current or former … employee of a governmental body who maintains public information on a privately owned device shall: (1) forward or transfer the public information to the governmental body [or server] to be preserved as provided by [law]; or (2) preserve the public information in its original form in a backup … on the privately owned device for the time described under [the law].

In other words, the law now places the burden on you to either transfer to the school district, or store government information maintained on your private device, in accordance with retention laws and policies.

“Going Forward, What Do I Do About All of This?”
First, channel all work communication through the school district servers, starting with the school email system. Some districts have district-controlled text messaging platforms. Use those instead of your private phone. You want the school district to be responsible for storing and releasing public information, not you. Second, words matter. Do not send any more work communications (memos, emails, texts) that you wouldn’t be proud to show to your superintendent.

A Word About The Texas Open Meetings Act
The Texas Open Meetings Act (OMA) applies: 1. When a quorum of the board deliberates or discusses public business or policy; and 2. When a quorum of the board calls and runs a meeting at which the board receives information.

Do Personnel Matters Have to be Discussed in Closed (Executive) Session?
Yes, if it involves “the appointment, employment, evaluation, reassignment, duties, discipline or dismissal of a public … employee;” and to hear a complaint or charge against an … employee. However, the board is not allowed to hold a closed meeting if the subject of the complaint requests that it be held in open session. So, if a parent or employee files a grievance against you, it should be held in executive session unless you request that it be held in open meeting, unless other confidentiality laws, such as FERPA, require it to be held in executive session. Even though the board may deliberate these matters in executive session the board must reconvene in open session to vote on the matter.

Agendas, Motions and Votes Are Important
To end a probationary contract at the end of the school year is pretty easy. The board has to post the item on the agenda, find that it is in the best interests of the school district, move and vote to end the contract, then give written notice of termination at least 10 days before the last day of instruction to the probationary employee.

In one recent case, the board’s agenda said it would, “Approve the termination of high school teacher probationary contract.” The board approved the item as part of a consent agenda, meaning they just used the agenda instead of a board member making a specific motion. But the agenda did not name the teacher, and there was more than one high school probationary contract teacher. So, who did the board terminate? The agenda, motion and vote did not answer this question.

A grievance was filed pointing out the inadequacy of the agenda, motion and vote. There was still time to do it correctly, so the board met again. This time the board’s agenda only said that it would “consider” terminating the probationary contract of the now-fully-named teacher. Again, the board adopted it as a consent agenda, “as is.” But this time the words on the agenda did not say “approve.” It said “consider.” So, the board voted to “consider” firing the employee but it did not actually fire him. The Commissioner of Education found that in neither instance did the board properly fire the probationary employee. Consequently, he was reemployed on a term contract.5

In the PIA and the OMA, words matter.

Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.

1Adkisson v. Paxton, 459 S.W.3d 761 (Tex. App.—Austin 2015, no pet.)
2Tex. Government Code Section 552.002 (a-2)
3Tex. Government Code Section 552.002 (a-1)
4Tex. Government Code Section 552.004 (b)(1), (2)
5Kelley v. Marlin Indep. Sch. Dist., TEA Docket No. 001-R2-09-2018 (Comm’r Educ. 2019)

TEPSA News, January/February 2022, Vol 79, No 1

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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.

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