Galveston ISD board accused of violating Texas Open Meetings Act
Trustee: Teacher’s complaints made closed session legal
Galveston ISD trustees violated state open meetings laws when they forced members of the public out of a Wednesday school board meeting for 14 minutes after a teacher speaking during public comments criticized the district’s new superintendent, according to a government accountability attorney.
Bill Aleshire, an Austin-based attorney who also volunteers with the Texas Freedom of Information Foundation, said because there were no agenda items relating to Superintendent Jerry Gibson, controversial comments he made in a Facebook Live video or criticism about him, the school board was not allowed to discuss complaints made about him at all.
“But they doubled down,” Aleshire said. “They would not have been able to discuss or deliberate the complaints being made about the superintendent
even in public, but they certainly weren’t allowed then to close the meeting to have deliberations they couldn’t have in public.”
However, Board President Anthony Brown, who is a commercial and real estate attorney in Galveston, said they were permitted to go into closed session because the teacher, Carrie Hunnicutt, who complained was a district employee. He said he consulted with the district’s general counsel, who said going into executive session was legal.
“What our agenda permits us to do is go into executive session under any matters acceptable under the open meetings requirements,” Brown said.
At issue were public comments made at a Wednesday Galveston ISD board meeting, in which several parents and teachers voiced displeasure with changes and controversial comments made about the district’s virtual program, known as Students Accessing Innovative Learning or SAIL.
Proponents of the program say Gibson abruptly changed how it was run three weeks after joining the district on Feb. 1. In a Facebook Live video on Galveston ISD’s account, Gibson said he found out around 5 p.m. on Feb. 22 that SAIL teachers were working remotely. He said he decided then that the teachers would have to return to a campus building to do their virtual instruction. They were told to report to a Galveston ISD facility by Feb. 24.
He added that he had heard allegations that some teachers were only giving five minutes of instruction a day or only working a few days a week while their colleagues teaching in-person were working full time.
“Yet on payday (the virtual teachers) receive a full paycheck,” Gibson said. “I’m not sure if that’s fair; I’m not sure if that’s consistent.”
Hunnicutt said she was offended by what she felt was an insinuation that she and her colleagues were doing subpar work and that her students were doing poorly, especially because Gibson had not talked with her or most other virtual teachers prior to making the video. She had prepared a three-minute speech to give at Wednesday’s meeting, but before she could, Brown issued a warning to those signed up to speak during public comments.
“If what you say in your comments could constitute as identifying a district employee by name or position, we will immediately take that in closed executive session,” Brown said. “If anyone starts, we will shut it down and go into executive session.”
The other speakers avoided mentioning Gibson by name or title, as did Hunnicutt. She spoke generally about the Facebook Live video, and her frustration with being accused of not doing a good job.
“If the board can honestly say that the person who was recently hired —” she started.
“Wait, we’re going to go into closed session,” Brown said just before the livestream feed was cut and everyone inside the board chambers was told they had to leave.
While Hunnicutt said she only had about 42 seconds left to speak, she stayed in the closed session with trustees for 14 minutes. She said after she finished her comments behind closed doors, Brown asked if he could respond and ask her questions. She said they ended up talking about everything from the superintendent search process, prekindergarten curriculum and an anonymous website. None of those topics were on the meeting’s agenda.
Aleshire gave his legal opinion after a reporter described the events in the school board meeting.
Although Brown said the board can discuss some of those matters in closed session, Aleshire said any subjects discussed in closed session must be posted on the meeting agenda ahead of time. If the board discusses anything not on the agenda, it’s a violation of the Open Meetings Act, and doubly so if it’s done in closed section. Violations for those sections of the Texas Open Meetings Act can carry criminal penalties, including fines of up to $500 and several months in the county jail.
“The first hole he dug was he thought they could deliberate a topic that wasn’t noticed in the agenda,” Aleshire said. “Then he dug the hole deeper when he said said we’re going to do it in a closed meeting.”
Aleshire said school boards and other government bodies can adopt policies limiting what can be discussed in public comments, such as imposing time restrictions and sometimes whether speakers can mention employees by name.
However, Brown told the Chronicle on Thursday that only negative comments or complaints made against district employees during public comment would trigger a closed session in Galveston ISD. He said if a speaker complimented, thanked or said something neutral about a school employee during public comments, that would be permitted because it wouldn’t violate employee rights to due process or internal grievance processes.
Aleshire said complaints made against government employees are only exempted by the Texas Public Information Act, which governs the types of documents agencies must release to the public. They do not apply to open meetings laws.
He said what’s more troubling is that allowing speakers to say nice things about employees but censoring negative speech about employees violates both the Texas Constitution and the First Amendment.
He added that it did not matter whether the person speaking was an employee of the district or a member of the public.
“He digs the hole even deeper by saying, ‘Well, if you want to say something nice about government employee, you’re allowed to speak. But if you criticize a government employee, you won’t be allowed to do that,” Aleshire said. “That is a clear violation of free speech. It is a content-based restriction on free speech.”
Hunnicutt, who teaches eighth-grade history, said she did not know that the closed session of the Texas Open Meetings Act and was surprised to learn she would have been allowed to compliment the superintendent publicly.
“As a teacher who teaches the American Constitution, I’m very disappointed,” Hunnicutt said. “I teach my students all about the First Amendment. To realize mine has been violated is astonishing.”