3. Electronic meetings

A “meeting” may occur in person or by using technological devices.  A.R.S. § 38-431(4).

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Under FOIA, a meeting can occur either in person or “by means of electronic equipment.” Conn. Gen. Stat. §1-200(2).

A member with a disability may attend a public meeting through electronic means of communication. 29 Del. C. § 10006A.

A public body may hold a virtual meeting if: (1) the public notice includes information regarding how the public can monitor or participate in the meeting, (2) the meeting has an anchor location in the geographic jurisdiction of the public body, (3) the identity of a member or witness is verified, and the actions of a member are authenticated, in a manner satisfactory to the presiding officer or chair, and (4) all participating members and witnesses can either hear the comments of each member or witness or hear the comments of and view each member or witness. Id. § 10006A(c).

A public body may hold a virtual meeting during a state of emergency without an anchor location if it meets the above criteria, and:

(1) The virtual meeting is preceded by the same public notice as required under § 10004 of this title, except that notice of the public meeting does not need to be conspicuously posted at the principal office of the public body holding the meeting or where meetings of the public body are regularly held.

(2) If all of the members of the public body are elected by the public to serve on the public body, all of the following must occur:

a. A document that is used during the meeting by a member or witness, and that is accepted by the presiding officer or chair, is immediately transmitted to each member or witness participating in the meeting.

b. The public is able to review a recording of the meeting within a reasonable time after the meeting concludes.

Id. § 10006A(e).

Electronic meetings are subject to the Open Meetings Act.  D.C. Code Ann. § 2-574(1).

Except in certain limited and specified circumstances, the Act provides for meetings to be conducted in person. But the Georgia Court of Appeals has indicated that a "meeting" not permitted under the Act but sufficient to trigger consequences may occur "by written, telephonic, electronic, wireless, or other virtual means." Claxton Enter. v. Evans Cty. Bd. of Comm'rs., 249 Ga. App. 870, 875 549 S.E.2d 830, 835 (2001). The Court added that "[a] designated place may be a postal, Internet, or telephonic address" and that "[a] designated time may be the date upon which requested responses are due." 249 Ga. App. at 876, 549 S.E.2d at 835.

A board may hold a meeting using interactive conference technology; provided that the interactive conference technology used by the board allows interaction among all members of the board participating in the meeting and all members of the public attending the meeting. Haw. Rev. Stat. § 92-3.5(a). Notice of meetings utilizing interactive conference technology must specify all locations at which board members will be physically present so that the public may attend the meeting at any of those locations. Id. If audio communication cannot be maintained at all locations, the meeting must be terminated. Id. § 92-3.5(c). Moreover, if copies of visual aids required by, or brought to the meeting by, board members or members of the public are not available at all locations where audio-only interactive technology is being used within fifteen minutes after audio-only communications is used, all agenda items for which visual aids are not available cannot be acted upon at the meetings. Id.

On April 27, 2021, the Hawai‘i legislature passed Senate Bill 1034, allowing boards to remotely conduct public meetings. The new law will go into effect on January 1, 2022, and adds a new option to the Sunshine Law that will allow boards to hold remote meetings on online meeting platforms like Zoom, WebEx, teleconferences, etc. The bill requires the board to provide at least one physical location with guaranteed connection to the online remote meeting, where board members and the public can go to participate in person if desired. S.B. 1034, 31st, Leg. (2021) (effective Jan. 1, 2022).

Idaho Code § 74-203(5) provides that meeting may be conducted using telecommunication devices that would enable all members of a governing body participating in the meeting to communicate with each other. Participation by a member of the governing body through telecommunication devices constitutes presence in person by such member at the meeting; provided, however, that at least one (1) member of the governing body, or the director of the public agency, or the chief administrative officer of the public agency shall be physically present at the location designated in the meeting notice.

1. A governmental body may conduct a meeting by electronic means only in circumstances where such a meeting in person is impossible or impractical and only if the governmental body complies with all of the following:

a. The governmental body provides public access to the conversation of the meeting to the extent reasonably possible.

b. The governmental body complies with section 21.4. For the purpose of this paragraph, the place of the meeting is the place from which the communication originates or where public access is provided to the conversation.

c. Minutes are kept of the meeting. The minutes shall include a statement explaining why a meeting in person was impossible or impractical.

2. A meeting conducted in compliance with this section shall not be considered in violation of this chapter.

3. A meeting by electronic means may be conducted without complying with paragraph “a” of subsection 1 if conducted in accordance with all of the requirements for a closed session contained in section 21.5.

Iowa Code § 21.8.

Bodies subject to KOMA may conduct meetings by telephone or other interactive mediums as long as other requirements are met.  Kan. Att’y Gen. Ops. 2011-23; 2005-03; 81-268; 80-173; and 80-159.  Interactive communication, for the purposes of the KOMA, requires a mutual or reciprocal exchange between or among members of a body or agency subject to KOMA. Kan. Att’y Gen. Op. 2009-22. Interactive communication does not occur when a non-member of a body or agency communicates with a majority of that body or agency board and a member responds and shares the response with other members. Id. Should there be further interactive communications among a majority of the members concerning the business of the body, and there is an intent by any or all of the participants to reach agreement on a matter that would require binding action, those communications are subject to the Kansas Open Meetings Act. Id.

School board members may violate KOMA if three or more members simultaneously engage in interactive discussion of board business through the use of computers. K.S.A. 75-4317, et seq.  However, the sending of electronic mail to other board members, standing alone, does not constitute "interactive communications" under KOMA. Kan. Att’y Gen. Op. 1995-13. But, majority must be present. K.S.A. 75-4317a.

Kentucky’s Open Meetings Act provides for meetings to be conducted by video teleconference in limited circumstances. See Ky. Rev. Stat. 61.826. The same procedures with regard to notice, participation, distribution of materials, and other matters apply to meetings via video teleconference.

As a result of legislation arising out of the COVID pandemic, electronic meetings are now permitted for nearly any public body which has powers, duties, or functions that are not limited to a particular political subdivision or region and that conducts at least six regularly scheduled meetings in a calendar year. La. Rev. Stat. Ann. § 42:17.2. This does not include: the legislature, either house of the legislature, or any committee of the legislature or either house of the legislature; the State Board of Elementary and Secondary Education; the Board of Regents; the Board of Ethics or Ethics Adjudicatory Board; the board of directors of the Louisiana Citizens Property Insurance Corporation; the State Board of Commerce and Industry; Industry; the board of supervisors for the Louisiana State University System, the University of Louisiana System, the Louisiana Community and Technical Colleges System, or the Southern University System; and any parish board of election supervisors. La. Rev. Stat. Ann. § 42:17.2 (I). Additionally, it does not apply during an executive session or any sequestered meeting, and no licensing or regulatory public body shall conduct a disciplinary hearing or adjudication via electronic means. La. Rev. Stat. Ann. § 42:17.2 (H)(2).

In general, electronic meetings violate the Act. See Op. Atty. Gen, May 17, 1977; Op. Atty Gen., April 6, 1977; Op. Atty Gen, March 25, 1977; Op. Atty. Gen, Sept. 6, 1984 (“The practice of conducting ‘public proceedings’ over the telephone is inimical to the fundamental purpose embodied in the Freedom of Access Law . . . .”)  The Legislature has, however, authorized remote meetings by some particular public bodies. See, e.g., 30-A M.R.S.A § 4723(2) (allowing Maine State Housing Authority to conduct public proceedings with one or more members of the board or commission participating remotely in certain circumstances). Also, during the COVID-19 state of emergency, remote access to public proceedings was allowed, subject to various limitations. 1 M.R.S.A. § 403-A. The provision was repealed on July 30, 2021.

On June 21, 2021, the Governor signed emergency legislation establishing new parameters for remote participation in the public proceedings of certain bodies. 1 M.R.S. §403-B (2021) (“An Act Regarding Remote Participation in Public Meetings”).  The law took effect on July 30, 2021. The new parameters govern remote participation for members of the body and public, not municipal staff or counsel.  The law does not apply to the Legislature or public bodies whose proceedings are specifically addressed by statute. Id. at §403-B(4). Likewise, the law categorically excludes town meetings and regional school unit budget meetings from coverage.

Under the law, remote participation (by telephonic or video technology) violates the Act, unless the public body adopts a written policy, after notice and hearing, “governing the conditions upon which the members of the body and the public may participate in a public proceeding of that body by remote methods . . . .” Id. at §403-B(2)(A). For bodies with a policy in place, members will still be expected to be physically present if it is practicable to do so.  Id. at §403-B(2)(B). For example, meeting in person may not be practicable if there is a time-sensitive issue or if significant travel is required to be physically present.  Id. at §403-B(2)(B)(1)-(4). If such circumstances arise and one or more members of the body participate remotely, then the policy must ensure that members of the public have a “meaningful opportunity” to attend and participate remotely if public input is permitted. Id. at §403-B(2)(C), (D).

For proceedings that the public may attend remotely, notice must be provided as required in the Act, and must also include (1) instructions on how to access the meeting remotely and (2) the meeting’s location for members of the public who wish to attend in person.  Id. at §403-B(2)(E); 1 M.R.S.A. § 406 (requiring the public be notified of public proceedings in the manner described herein). The body may not require that members of the public only attend remotely unless there is “an emergency or urgent issue that requires the public body to meet by remote methods.” Id. at §403-B(2)(B)(1); §403-B(2)(E).

The law also requires the body to make available to remote public attendees any documents or like materials (electronic or otherwise) that would “customarily” be available to members of the public who attend in person, so long as the body does not incur additional costs for doing so. Id. at §403-B(2)(H).

The law further stipulates “all votes taken during a public proceeding using remote methods must be taken by roll call vote that can be seen and heard if using video technology, and heard if using only audio technology, by the other members of the public body and the public . . . .” Id. at §403-B(2)(G).

Open Meetings Act [§ 15.261 et seq.] was not violated by the Department of Social Services in contested case hearings in which teleconference calls were conducted over speaker phones and all interested persons who wished to attend hearings were allowed to do so; furthermore, release of a written opinion to public, rather than convening a second hearing for sole purpose of announcing hearing officer's decision, would meet requirements of the Act. Goode v. Dep’t of Soc. Servs., 143 Mich. App. 756, 373 N.W.2d 210 (1985).

Any means of assemblage by electronic means are covered by the Law. § 25-41-3(b).

The definition of public meeting includes meeting conducted by communication equipment, including, but not limited to, conference call, video conference, internet chat, or internet message board. Mo.Rev.Stat. § 610.010(5). The notice for meetings conducted by telephone or other electronic means must include the mode by which the meeting will be conducted and a location where the public can observe and attend. Mo.Rev.Stat. § 610.020.1.

Both conference calls and e-mail messages are open to the public and subject to the requirements of the right-to-know laws.

A meeting can occur in person or electronically. NRS 241.015(3)(a). The law states that electronic communication "must not be used to circumvent the spirit or letter of this chapter in order to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory powers." NRS 241.030(4).

The Statute provides for electronic meetings under limited circumstances. RSA 91-A:2,III reads:
“A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting. For purposes of this subparagraph, an "emergency'' means that immediate action is imperative and the physical presence of a quorum is not reasonably practical within the period of time requiring action. The determination that an emergency exists shall be made by the chairman or presiding officer of the public body, and the facts upon which that determination is based shall be included in the minutes of the meeting.
(c) Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting. Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting's location. Any member participating in such fashion shall identify the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
(e) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.”

Any gathering by means of communication equipment, which satisfies the other requirements of N.J.S.A. 10:4-8b constitutes a “meeting” under OPMA.

The statute particularly addresses meetings conducted via videoconference, stating:
1. A public body that uses videoconferencing to conduct its meetings shall provide an opportunity for the public to attend, listen and observe at any site at which a member participates.
2. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
N.Y. Pub. Off. Law §§ 103(c) & 104(4).

The law specifically applies to electronic meetings, defining a “meeting” as a formal or informal gathering or a work session, whether in person or through electronic means such as telephone or videoconference. N.D.C.C. § 44-04-17.1(9) (emphasis added).

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Public bodies are authorized to hold meetings by videoconference provided that each member is visible and audible to each other and the public through a video monitor. 25 O.S. § 307.A.1. No less than a quorum of the public body must be present at the posted meeting site. Id.

The participation of some members by speakerphone during agency deliberations does not violate the Act so long as the meeting itself is open to the public. See Babac v. Pa. Milk Mktg. Bd., 613 A.2d 551 (Pa. 1992). However, the Sunshine Act’s requirement that votes be “publicly cast” precludes the use of paper ballots secretly exchanged among school board members until a decision is reached. Pub. Opinion v. Chambersburg Area Sch. Dist., 654 A.2d 284 (Pa. Commw. Ct. 1995) (stating the requirement that a vote be “publicly cast” meant that the vote “must be one that informs the public of an elected official’s position on a particular matter of business”).

While no provision of the OML attempts to regulate electronic meetings (i.e., conference calls, e-mail), the OML does expressly prohibit the use of electronic communication to circumvent the spirit or requirements of the OML. R.I. Gen. Laws § 42-46-5(b).  Discussions of a public body visa electronic communication shall be permitted only to schedule meetings. R.I. Gen. Laws § 42-46-5(b)(1).

A meeting under the act occurs when a quorum of the constituent membership of the body convenes in person or "by means of electronic equipment." S.C. Code Ann. § 30-4-20(d). When the public body convenes electronically the act would seem to require an opportunity for the public to have access to the electronic meeting to make the meeting public.

All public bodies may conduct any meeting wherein the public business is discussed or transacted through electronic communication means under certain circumstances and if certain procedures are followed. Va. Code Ann. § 2.2-3708.2.A.  See the Act for additional circumstances and procedures for meetings by electronic communication of regional public bodies and state public bodies. Va. Code Ann. § 2.2-3708.2.B. and D.  The circumstances and procedures for meetings by electronic communication shall not be construed to prohibit the use of interactive audio or video means to expand public participation. Va. Code Ann. § 2.2-3708.E.

No regular, special, or reconvened session of the General Assembly held pursuant to Article IV, Section 6 of the Constitution of Virginia shall be conducted using electronic communication means pursuant § 2.2-3708.2. Va. Code Ann. § 2.2-3707.01.D.

The Act says that “all” meetings of the governing body of a public agency shall be open and public. It does not require that such meetings be conducted in person. Presumably, meetings by conference call or e-mail are not prohibited so long as there is a speaker phone or video display terminal for the public who may wish to observe and/or listen to the proceedings. With the proper scheduling of meeting and agenda, such procedures likely would meet the requirements of the Act.

A 2017 attorney general opinion concluded that governing bodies of public agencies may conduct their meetings exclusively by telephone conference call, as long as the call is sufficiently open to the public. AGO 2017 No. 4 (Mar. 21, 2017). The attorney general suggested such meetings would be permissible if there were:

[O]ne or more specific locations [that] can be designated as the meeting place; notification of the meeting place(s) and time can be provided in the manner outlined in RCW 42.30.075; the agenda can be posted online if required by RCW 42.30.077; and a speaker phone can be provided at the designated meeting place(s) to enable those attending to hear the public discussions and to provide testimony.

Id. The attorney general concluded that a challenge to such a meeting under the OPMA would be “unlikely” to succeed.

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Covered.