Why the KISD Board Must Waive Privilege: Transparency Is a Fiduciary Duty, Not a Liability

Why the KISD Board Must Waive Privilege: Transparency Is a Fiduciary Duty, Not a Liability

By Andrew D. Sternke, J.D.

Executive Director, Texas Public Education Defense Fund (TPEDF)

In recent months, the Keller ISD Board of Trustees has been involved in controversy over alleged secret discussions and legal expenditures tied to plans to split the district. As community members, parents, and taxpayers demand answers, some trustees have argued that attorney-client privilege and fiduciary responsibilities prevent the release of legal documents and invoices related to these discussions.

Let me be clear: that argument is legally inaccurate and ethically troubling. The Board has the legal authority to waive privilege in this matter and has a moral and fiduciary obligation to do so.

What Is Legal Privilege And Who Really Owns It?

In Texas, attorney-client privilege is governed by Texas Rule of Evidence 503. This rule protects confidential communications between clients and their legal counsel to facilitate legal advice.

However, in the context of public entities like Keller ISD, the "client" is not an individual trustee. The Board holds the legal privilege as a collective governmental body, as clarified by Open Records Decision No. ORD‑676 (2002) from the Texas Attorney General. No single board member has the power to assert or waive privilege on their own. Only the Board, through a formal vote, can decide to waive privilege.

Additionally, Texas Rule of Evidence 511 clarifies that privilege can be voluntarily waived, either explicitly (by vote) or implicitly (through disclosure).

In other words, trustees who claim they are individually bound by privilege are either misinformed or deliberately misleading the public. The Board, as the legal entity, holds the privilege and can waive it through a public vote, which is consistent with Texas law.

Fiduciary Duty Requires Openness, Not Obstruction

Some trustees have pointed to their fiduciary duty as a reason to maintain secrecy. However, that reflects a fundamental misunderstanding of what fiduciary duty means in public service.

Under Texas law, trustees have a duty of loyalty, care, and obedience to the law and the public. They do not serve their own interests, political alliances, or outside legal strategies. They serve the taxpayers and students of Keller ISD.

When legal services are paid for with public dollars, especially concerning controversial topics like district secession, fiduciary duty demands oversight, not opacity. Voters have the right to know:

• What legal advice was sought and why?
• Who authorized it?
• How much of their tax money was spent?

As the Texas Supreme Court affirmed in Paxton v. City of Dallas, 509 S.W.3d 247 (Tex. 2017), attorney-client privilege is especially important in government. Still, the environmental body retains full authority to waive it when appropriate. The Court emphasized that public entities must balance legal confidentiality with the principles of open government.

The Path to Waive Privilege: Step-by-Step

The KISD Board of Trustees can waive attorney-client privilege fully within the bounds of Texas law. Here’s an example:

1. Post the Item on the Meeting Agenda

Include a properly worded agenda item such as:

“Discussion and possible action to waive attorney-client privilege and release all legal communications, memos, and invoices related to district split discussions occurring between May 2024 and the present.”

2. Review Privileged Documents in Executive Session (Optional)

Under the Texas Open Meetings Act (TOMA), the Board may review these materials confidentially before taking action.

3. Vote in Open Session

The waiver must be approved by a majority of the Board in a public vote. This action is lawful and aligns with Texas Government Code § 552.107(1), which allows, but does not require, exempting privileged materials from disclosure under the Texas Public Information Act.

4. Direct Counsel to Disclose Materials

The Board may instruct its legal counsel to release specific communications, emails, invoices, or memoranda, particularly those tied to the use of public funds. According to Texas Government Code § 552.022(a)(16), attorney billing records are generally public unless a valid claim of privilege is actively maintained.

The Law Encourages Transparency

The Texas Attorney General’s Office has consistently upheld that the attorney-client privilege in government is discretionary, not mandatory. In ORD‑676 (2002), the AG concluded that a governmental body may voluntarily waive privilege to release otherwise exempt documents, supporting the principles of open government.

The Texas Public Information Act reinforces that precedent, favoring transparency and limiting exceptions to disclosure. Privilege can be claimed, but just as importantly, it can be waived when the public interest demands it.

The Public Interest Demands Action

This isn’t about politics. It’s about public transparency and accountability. Keller ISD stakeholders deserve honest answers:

• Who initiated plans to split the district?
• What advice did the Board receive?
• How much taxpayer money was spent, without public approval or awareness?
• Was the Texas Open Meetings Act (TOMA) violated?

If nothing improper occurred, transparency will clear the air. If there was misconduct, transparency is the first step toward accountability. Continuing to hide behind privilege only deepens public mistrust.

Real Leadership Means Choosing the Public Over Politics

This is a defining moment for the KISD Board. Trustees must choose whether to protect the people or themselves.

By voting to waive privilege and disclose these documents, the Board would demonstrate a commitment to honest governance, fiduciary integrity, and lawful transparency, the very principles they swore to uphold.

The truth should never be treated as a liability in public education and public service.

Disclaimer:

The information provided in this article is for educational and informational purposes only and does not constitute legal advice. For advice regarding specific legal matters or rights, readers should consult with a qualified attorney licensed in their jurisdiction.