Texas State Board of Public Accountancy v. Bass

OPINION

Carl Bass, Patricia Grutzmacher, and Thomas Bauer (collectively, the "accountants") are former employees of Arthur Andersen LLP. While employed by Andersen, they participated in the 1997 and 1998 audits of Enron Corporation’s financial statements. Their work on those Enron audits led to disciplinary actions against them by the Texas State Board of Public Accountancy. This consolidated appeal arises out of their individual suits for judicial review of the Board’s orders revoking Bass’s and Bauer’s professional certificates and suspending Grutzmacher’s certificate and license for three years. On cross-motions for summary judgment, the trial court granted summary judgment for the accountants and denied summary judgment for the Board on the accountants’ claim that the Board violated the Texas Open Meetings Act ("TOMA" or the "Act"). See generally Tex. Gov’t Code Ann. §§ 551.001-.146 (West 2004 & Supp. 2011).*fn1 The trial court held that the Board violated the Act and declared the Board’s orders sanctioning the accountants void. The trial court also enjoined the Board from re-prosecuting the accountants for the conduct that was the subject of the Board’s orders and dismissed the remainder of the accountants’ claims as moot. The Board and the Board members (collectively, the "Board") appeal the final judgment, arguing that the trial court should have granted its summary-judgment motion because the evidence established that the Board (1) publicly deliberated and publicly voted on its orders sanctioning the accountants; and (2) called the challenged executive sessions to obtain legal advice on matters subject to the attorney-client privilege, as authorized under the Act. Alternatively, the Board argues that the evidence at least raises a fact question sufficient to defeat the accountants’ claim that the executive sessions were not authorized under the Act. The Board also challenges the permanent injunction prohibiting it from taking any further action against the accountants, even if any future prosecution by the Board complied with the Act. We will reverse the trial court’s judgment and remand for further proceedings because we find that the accountants failed to establish their TOMA claim.