a. Conference calls and video/Internet conferencing
Utilization of electronic communication is allowed for bodies made up of members from two or more counties as long as the communication is done in a manner that complies with the Act, the public is allowed to be present at a physical location and hear all persons participating remotely unless authorized elsewhere, and three members (or a majority of quorum) are physically present. Ala. Code § 26-25A-5.1. Bodies in counties or municipalities may meet electronically as long as a quorum is physically present, those participating electronically are unable to be physically present due to illness, and the body has adopted a electronic meeting policy detailing procedures. Ala. Code § 26-25A-5.2. In addition, specific bodies may conduct open meetings electronically if expressly permitted by statute. See, e.g., Ala. Code § 34-19-12(e) (permitting the State Board of Midwifery to conduct business electronically); Ala. Att’y Gen. Op. 2018-049. Electronic meetings permitted by specific statute must still meet the requirements of public access and notice under Ala. Code § 36-25A-1(a). Id. Otherwise the use of electronic communications to circumvent the Act are prohibited.
Members of a governmental body may meet by teleconference. Implicit in this is the requirement that any such conference call meeting be conducted in a fashion that all participating members of the body can simultaneously listen to the debate or discussion of all others, and be heard by all others. Compare with a situation where one member of a body makes a sequential series of phone calls to other individuals in the body to obtain their concurrence in an action to be taken. A superior court judge in one such case voided the resulting action on the grounds that the failure to have all members able to simultaneously participate was improper, and rendered the resulting decision defective.
If the meeting is to be by teleconference, the location of any teleconferencing facilities that will be used must be included in the public notice given for the meeting. AS 44.62.310(e). Agency materials that are to be considered at the meeting shall be made available at teleconference locations "if practicable," and votes at a meeting held by teleconference must be taken by roll call. AS 44.62.310(a). In Hickel v. Southeast Conference, 868 P.2d 919, 928-929 (Alaska 1994), the Supreme Court reversed a superior court finding that the Reapportionment Board had committed a violation of the OMA by failing to give notice of teleconference sites, failing to make materials available for teleconferences, and failing to take roll call votes during teleconferences, when it allowed public participation by phone without giving public notice of every location from which citizens might call in.
The Supreme Court noted that the OMA allows, but does not require, the use of teleconferencing "for the convenience of the parties, the public, and the governmental units conducting the meetings," AS 44.62.312(a)(6), and that "attendance and participation at meetings . . . may be by teleconferencing." AS 44.62.310(a). The court observed that while teleconferencing is not mandatory, the act requires certain procedures if it is used, including making materials available at teleconference locations, taking votes by roll call, and providing reasonable public notice as to the time, date and location of the teleconference location to be used. The Supreme Court concluded that
In this case, the Board usually had only one meeting site. However, the Board allowed any citizen to call in and provide testimony by telephone, without necessarily traveling to an official teleconference site. In the Board's view, this approach expanded public access to the reapportionment process, and was consistent with the provisions of the Open Meetings Act. We agree. The participation of the public would have been more meaningful had the individual callers been provided with reapportionment materials. Nevertheless, the Board was only required to hold open meetings — it was not required to allow citizens to call in or to set up teleconferencing centers. AS 44.62.310. We therefore hold that the Board's procedure, however imperfect, did not violate the Open Meetings Act.
Implicit in the holding is that all phones used to participate in a meeting are not "teleconferencing facilities" within the meaning of the act. The Attorney General had since advised public agencies that the Hickel ruling does not authorize members of a body who are participating in meetings by telephone to do so anywhere except at publicly noticed teleconferencing facilities, unless attendance at a teleconferencing facility would cause undue hardship. August 21, 1995, Attorney General Opinion No. 663-95-0524.
A telephone meeting must be conducted in accordance with the FOIA. Such a meeting is permissible if sufficient safeguards are employed, such as proper notice and the availability of telephones for the public and press. Thus, an agency might arrange a conference call among members of its board, with a speaker phone set up in a meeting room where members of the public and press may listen to the proceedings. Ark. Op. Att’y Gen. Nos. 2000-102, 2000-096. However, polling individual members of the governing body one-by-one without such safeguards violates the act. Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004); Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). See also Ark. Op. Att’y Gen. Nos. 99-018, 94-167. But see Ark. Okla. Gas Corp. v. MacSteel Div. of Quanex, 370 Ark. 481, 262 S.W.3d 147 (2007) (county judge contacting members of quorum court to ensure they understood the next meeting’s agenda did not constitute a meeting).
A telephone conversation between two members of a governing body to discuss official business does not run afoul of the FOIA if there are not “successive conversations suggesting circumvention of the open meeting requirement.” Ark. Op. Att’y Gen. No. 99-018. Such circumvention might occur when “[s]erial telephone conversations” among members of the governing body have taken place. Id.
Bagley-Keene Act: A state body is not prohibited from holding an open or closed meeting by teleconference. Cal. Gov't Code § 11123(b)(1). A "teleconference" means “a meeting of a state body, the members of which are at different locations, connected by electronic means, through either audio or both audio and video." Cal. Gov't Code § 11123(b)(2).Generally, the teleconference rules require at least one member of the state body to be physical present at the location and post the agenda at the meeting location, among other requirements. These rules are outlined below. However, on June 20, 2022, in a temporary measure set to expire on July 1, 2023, the Legislature enacted Section 11133 of the Government Code. That Section allows for all members of the state body and members of the public to attend meetings entirely through teleconference, subject to specific requirements. When meetings are conducted under Section 11133, the general rules for conducting meetings through teleconference under Section 11123(b), set forth below, are suspended.
Under Section 11123(b) a teleconference meeting must meet the following requirements:
(1) it must comply with all of the Act's requirements applicable to other meetings and be conducted in a manner that protects the rights of any parties or member of the public appearing before the state body (Cal. Gov’t Code § 11123(b)(1)(A));
(2) it must be audible to the public at the location specified in the notice of the open meeting (Cal. Gov’t Code § 11123(b)(1)(B));
(3) each teleconference location must be identified in the notice and agenda of the meeting and be accessible to the public and the agenda must provide an opportunity for members of the public to address the state body directly at each telephone conference location (Cal. Gov’t Code § 11123(b)(1)(C));
(4) all votes must be taken by roll call (Cal. Gov’t Code § 11123(b)(1)(D));
(5) any portion of the teleconferenced meeting that is closed to the public may not include consideration of any agenda item being heard pursuant to emergency situations involving matters upon which prompt action is necessary (Cal. Gov’t Code § 11123(b)(1)(E); and
(6) at least one member of the state body must be physically present at the location specified in the notice of the meeting (Cal. Gov't Code § 11123(b)(1)(F)).
Separately, the Bagley-Keene Act authorizes any state body that is an advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body to hold an open meeting by teleconference. Cal. Gov’t Code § 11123.5. This authorization requires, among other things, that the state body provide notice to the public at least 24 hours before a meeting and identify any member who will participate remotely. This notice must be on the state body’s website and emailed to any other person who has requested notice of meetings of state bodies. Cal. Gov’t Code § 11123.5(c). The location of the member who will participate remotely is not required to be disclosed in the public notice or email. Id. Nor is the agenda required to disclose information regarding any remote location. Id. § 11123.5(d). A quorum of members of the state body shall be in attendance at the primary physical meeting location, and members of the state body participating remotely shall not count towards establishing a quorum. Id. §11123.5(e). All decisions taken during a meeting by teleconference shall be by rollcall vote. Id. Agendas must be posted at the primary physical meeting location, but need not be posted at a remote location. Id. This section also provides that the state body provide a means by which the public may remotely hear audio of the meeting or remotely observe the meeting, including, if available, equal access to equipment to members of the state body participating remotely. It also requires that applicable teleconference numbers or websites used for conferencing, or other information about how the public can access the meeting remotely be included in the 24-hour notice disclosing remote participation. Id. § 11123.5(f).
Section 11133 (set to expire on July 1, 2023) suspends specific requirements of Section 11123 pertaining to teleconference meetings when other requirements as to notice and accessibility are met. Specifically, Section 11133 suspends the following requirements:
(1) each teleconference location from which a member will be participating in a public meeting be identified in the notice and agenda (Cal. Gov’t Code § 11133(b)(2)(A));
(2) each teleconference location be accessible to the public (Cal. Gov’t Code § 11133(b)(2)(B));
(3) members of the public may address the state body at each teleconference location (Cal. Gov’t Code § 11133(b)(2)(C));
(4) post agendas at all teleconference locations (Cal. Gov’t Code § 11133(b)(2)(D)); and,
(5) at least one member of the state body be physically present at the location specified in the notice of the meeting (Cal. Gov’t Code Section 11133(b)(2)(E)).
While the state body need not make available any physical location from which members of the public may observe the meeting, it must allow members to observe and address the meeting telephonically or otherwise electronically. Cal. Gov’t Code § 11133(b)(3). Additionally, the state body must implement procedures for receiving and resolving requests for accommodation from individuals with disabilities, and advertise those procedures each time notice is given of the means by which members of the public may observe the meeting and offer public comment. Cal. Gov’t Code § 11133(d). The state body must also give notice of the meeting and post the agenda, in accordance with existing laws, and give notice of the means by which members of the public may observe the meeting and offer public comment. Cal. Gov’t Code § 11133(e)(1)&(2). Section 11133 is set to expire July 1, 2023.
Brown Act: The legislative body of a local agency may use teleconferencing in connection with any meeting or proceeding authorized by law. Cal. Gov't Code § 54953(b)(1). A "teleconference" is "a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both." Cal. Gov't Code § 54953(j)(6). The teleconferencing requirements of Section 54953(b) may be suspended in two circumstances. One, when certain declared states of emergency exist. Cal. Gov’t Code § 54953(e). The other, to allow members of the legislative body to appear remotely when at least a quorum of the members of the body participate in person from a singular physical location clearly identified on the agenda, which location must be open to the public and within the territorial jurisdiction of the body where certain other requirements are met. Cal. Gov’t Code § 54953(e). Discussion of these two exceptions to the general teleconferencing requirements are set forth after the discussion of the general teleconferencing requirements. The current teleconferencing provisions of the Brown Act are set to expire on January 1, 2024, at which time a revised Section 54953 will go into effect. Cal. Gov’t Code § 54953(k).
The teleconferenced meeting must meet the following requirements:
(1) all votes must be taken by roll call (Cal. Gov’t Code § 54953(b)(2)(A));
(2) it shall be conducted in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body (Cal. Gov’t Code § 54953(b)(2)(B);
(3) the legislative body shall give notice of the meeting and post agendas as otherwise required under the Act (Cal. Gov’t Code § 54953(b)(2)(C);
(4) the legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 (Cal. Gov’t Code § 54953(b)(2)(D));
(5) agendas must be posted at all teleconference locations (Cal. Gov’t Code § 54954.3(b)(3); and,
(6) during the teleconferenced meeting, at least a quorum of the members of the legislative body must participate from locations within the boundaries of the body's jurisdiction (Cal. Gov’t Code § 54953(b)(3)).
Remote Access for Individual Members of the Legislative Body: Under subdivision (f) of Section 54953, the above teleconferencing requirements may be set aside to allow members of the legislative body to appear remotely where at least a quorum of the members participate in person from a singular physical location within the territorial jurisdiction of the legislative body and the body complies with all of the following:
(1) the legislative body shall provide either a two-way audiovisual platform or a two-way telephonic service and a live webcasting of the meeting so that the public may remotely hear and visually observe the meeting (Cal. Gov’t Code § 54953(f)(1)(A);
(2) give notice of the means by which members of the public may access the meeting and offer public comments each time the teleconference meeting is noticed or the agenda is posted (Cal. Gov’t Code 54953(f)(1)(B));
(3) identify in the agenda and include therein an opportunity for all persons to attend and address the body directly pursuant to Section 54954.3 via a call-in option, via an internet-based service option, and at the in-person location of the meetings (Cal. Gov’t Code § 54954(f)(1)(C));
(4) if there is a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call-in option or internet-based option, or in the event a disruption within the local agency’s control that prevents a member of the public from offering comment using the call-in option or internet-based option, the body shall take no further action on items appearing on the agenda until public access via the service option utilized is restored (Cal. Gov’t Code § 54953(f)(1)(D));
(5) the legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time (Cal. Gov’t Code § 54953(f)(1)(E));
(6) notwithstanding Section 54953.3, an individual desiring to provide public comments through the use of an internet site, or other platform, not under the control of the local legislative body, that requires registration to log into a teleconference may be required to register as required by the third-party internet website or online platform to participate (Cal. Gov’t Code 54953(f)(1)(F)); and,
(7) the legislative body must also have and implement procedures for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. § 12132), and conduct meetings consistent with applicable civil rights and nondiscrimination laws (Cal. Gov’t Code § 54953(g)&(h)).
Additionally, members of the legislative body desiring to appear remotely under subdivision (f) of Section 54953 must meet the following requirements:
(1) notify the legislative body at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause, including a general description of the circumstances relating to the need to appear remotely, or obtain legislative body approval to participate remotely due to emergency circumstances (Cal. Gov’t Code § 54953(f)(2)(A)(i)&(ii)). “Emergency circumstances” under this subdivision means “a physical or family medical emergency that prevents a member from attending in person.” Cal. Gov’t Code § 54953(j)(1);
(2) publicly disclose at the meeting before any action is taken, whether any other individual 18 years or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individuals (Cal. Gov’t Code § 54953(f)(2)(B)); and,
(3) participate through both audio and visual technology (Cal. Gov’t Code § 54953(f)(2)(C)).
Individual members cannot participate remotely under subdivision (f) of Section 54953 for more than three consecutive months, 20 percent of regular meetings or twice in a calendar year for bodies that meet fewer than 10 times per year. Cal. Gov’t Code § 54953(f)(3). A “just cause” request to appear remotely may not be invoked by the member more than two meetings per calendar year (id., § 54953(f)(2)(A)(i)).
Declared State of Emergency: Under subdivision (e) of Section 54953, a legislative body may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) during certain declared states of emergency if the legislative body complies with the following requirements:
(1) give notice of the means by which members of the public may access the meeting and offer public comment in each instance in which notice of the time of the teleconference meeting is otherwise given or the agenda is posted (Cal. Gov’t Code § 54953(e)(2)(A));
(2) if there is a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call-in option or internet-based option, or in the event a disruption within the local agency’s control that prevents a member of the public from offering comment using the call-in option or internet-based option, the body shall take no further action on items appearing on the agenda until public access via the service option utilized is restored (Cal. Gov’t Code § 54953(e)(2)(B));
(3) the legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comments in real time (Cal. Gov’t Code § 54953(e)(2)(C));
(4) notwithstanding Section 54953.3, an individual desiring to provide public comments through the use of an internet site, or other platform, not under the control of the local legislative body, that requires registration to log into a teleconference may be required to register as required by the third-party internet website or online platform to participate (Cal. Gov’t Code 54953(e)(2)(D)); and,
(5) a legislative body that provides a timed public comment period for each agenda item shall not close the public comments period for the agenda item, or the opportunity to register to provide public comments, until that timed public comments period has elapsed; a legislative body that does not provide a timed public comment period, but takes comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comments, including time for members of the public to register or otherwise be recognized for the purpose of providing public comments; and, a legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register until the timed general public comment period has elapsed (Cal. Gov’t Code § 54953(e)(2)(E)(i),(ii) & (iii)).
To continue the state of emergency teleconference procedures after the first declared state of emergency, the legislative body shall, not later than 30 days after the first teleconference under a declared state of emergency, reconsider the circumstances of the state of emergency and find that either (1) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (2) state or local officials continue to impose or recommend measures to promote social distancing. Cal. Gov’t Code § 54953(e)(3)(B)(i)&(ii).
Conference calls between a quorum of the members of any public body for the purposes of discussing or taking action on public business appear to constitute public meetings that are subject to the Act. Tyron v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990) (finding that a telephone conversation was not a public meeting only because the conversation was between less than a quorum). A series of telephone calls made by a member of a public body to a number of other members of the same body, which number constitutes a quorum of the public body, is a meeting subject to the open meetings laws. Del. Op. Att’y Gen., No. 04-ib17 (Oct. 18, 2004).
Virtual meetings are permissible if the public body meets the conditions listed in 29 Del. C. § 10006A(c).
Telephone conversations between members of a public body subject to the Sunshine Law do not constitute illegal meetings per se. However, if such conversations are held to discuss public business in a place inaccessible to members of the public and press for the specific purpose of avoiding public scrutiny, section 286.011 will apply. Op. Att’y Gen. Fla. 71-32 (1971); see also Op. Att’y Gen. Fla. 75-59 (1975).
The Act authorizes agencies with state-wide jurisdiction and their committees to conduct meetings by teleconference call, but the meetings must comply with the requirements of the Act. O.C.G.A. § 50-14-1(f). See, e.g., 1994 Op. Att'y Gen. No. 94-11 (State Properties Commission may hold meetings via conference call if conducted in compliance with the Act).
As long as other requirements of the Act are met—including provision for simultaneous public access—other agencies and their committees are permitted to conduct meetings by teleconference only if “necessitated by emergency conditions involving public safety or the preservation of property or public services.” O.C.G.A. § 50-14-1(g). Otherwise, provided a quorum is present in person, a member may be permitted to participate by teleconference but only if necessary for health reasons or absence from the jurisdiction and no more than twice in one calendar year, absent an emergency or written note from a health professional. Id.
A board may hold a meeting by 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 at any location utilizing such interactive conference technology. Haw. Rev. Stat. § 92-3.5(a).
Generally speaking, any form of discussion among board members concerning matters over which the board has supervision, control, jurisdiction or advisory power and that are before or are reasonably expected to come before the board, outside of a duly noticed meeting, violates the Sunshine Law unless it is a permitted interaction under H.R.S. § 92-2.5(a). See generally Board Members Discussion of Official Business Outside of a Duly Noticed Meeting, OIP Op. Ltr. No. 04-01 (January 13, 2004).
In terms of transparency, board members who are participating remotely from their homes or other private locations must announce who is at the private location with them. S.B. 1034, 31st, Leg. (2021) (effective Jan. 1, 2022). Board members must also announce the names of participating members at the beginning of the meeting. Id. Voting in online remote meetings must be by roll call except where a vote is unanimous. Id.
If the internet connection for the remote meeting is lost, the meeting must recess until the connection is restored. Id. In the event that the board is only able to re-establish audio connection, the meeting can continue only if items involving visual aids are shared with all participants and speakers must state their name before making remarks. Id.
A board must record a remote meeting “when practicable.” Id. The recording then should be made available to the public after the meeting until such time as the meeting minutes have been posted online. Id.
For all types of meetings, a board’s notice must now include its electronic and postal contact information for the public to submit testimony before the meeting. Id.
If the participants in the conference call constitute a quorum of the governing body and the facts otherwise indicate that a meeting as defined by the law is occurring, then the conference call constitutes a meeting and is subject to the requirements of the Open Meeting Law. Idaho Code § 74-203(5).
The Act defines a “meeting” as “any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication.” 5 ILCS 120/1.02. Additionally, both the Appellate Court of Illinois and the Illinois Attorney General have addressed conference calls. The appellate court has held that conducting a meeting by telephone conference does not, by itself, violate the Act. See People ex rel. Graf v. Village of Lake Bluff, 321 Ill. App. 3d 897, 907-08, 748 N.E.2d 801, 811, 255 Ill. Dec. 97, 107 (2d Dist. 2001), rev’d on other grounds, 206 Ill. 2d 541, 795 N.E.2d 281, 276 Ill. Dec. 928 (2003); Freedom Oil Co. v. Illinois Pollution Control Bd., 275 Ill. App. 3d 508, 655 N.E.2d 1184, 211 Ill. Dec. 801 (4th Dist. 1995). The Attorney General held the same view that conference calls are a permissible means to hold a meeting, so long as notice provisions of the act are met and the public can participate. See Op. Att’y Gen. 041 (1982). However, public bodies must fully comply with all requirements of the Act, whether their meetings are held in person or by telephone. This means that the press and the public can attend conference call meetings.
The Act establishes the authority of a public body to set rules to allow for electronic attendance under certain limited circumstances. Participation must be by phone to allow voice identification of the absent member. 5 ILCS 120/7.
The definition of “meeting” as “a gathering of a majority of the governing body of a public agency” is not limited to in-person gatherings. See Ind. Code § 5-14-1.5-2(c). Thus, it is broad enough to encompass conference calls.
In 2012, the Open Door Law was amended to specifically address participation in meetings by electronic means. A member of the governing body of a public agency of a political subdivision who is not physically present at a meeting of the governing body but who communicates with members of the governing body during the meeting by telephone, computer, videoconferencing, or any other electronic means may not participate in final action taken at the meeting unless the member’s participation is expressly authorized by statute; and may not be considered to be present unless the meeting is expressly authorized by statute. Ind. Code § 5-14-1.5-3.5(b).The minutes of the meeting must state whether members participated in person or by using a means of electronic communication. Id. § 5-14-1.5-3.5(c).
For governing bodies of a public agency of the state, Indiana Code Section 5-14-1.5-3.6 governs electronic communication for charter schools and airport authorities. Ind. Code § 5-14-1.5-3.6(a). A member of the governing body of a public agency of the state who is not physically present at a meeting of the governing body may participate via electronic communication only if that means of communication permits all members participating to simultaneously communicate with each other. Id. § 5-14-1.5-3.6(b). There are additional requirements as well. See id. § 5-14-1.5-3.6(c).
Telephone meetings are within the definition of "meeting" in K.S.A. 75-4317a. A public body subject to the Kansas Open Meetings Act may legally conduct meetings by telephone, if it does so in compliance with all of the requirements of the KOMA. Regardless of whether a meeting is to be conducted telephonically, in person, by video-conference, or even through third parties, the requirements of the KOMA remain applicable. Kan. Att’y Gen. Op. 2005-3. A public entity subject to the Kansas Open Meetings Act may conduct meetings outside of Kansas or by teleconference or videoconference if the public entity complies with all of the requirements of the Kansas Open Meetings Act. Kan. Att’y Gen. Op. 2011-23.
After the governor made an emergency declaration in response to the COVID-19 pandemic in 2020, a regulation was promulgated providing that the requirements of the Kansas Open Meetings Act would still be met even if the “declaration prevent[ed] or impede[d] the ability…to conduct meetings by physically gathering in person." K.A.R. 16-20-1(a)(3). A public agency is required, among other things, to “Use a medium for interactive communication that, at a minimum, allows members of the public, without cost, to listen to the meeting and, if available, also allows video observation of the meeting” and “to describe at the beginning of the meeting whether public comment will be allowed and what process will be used to identify any individual who wishes to comment, if permitted . . . .” K.A.R. 16-20-1(e).
The Open Meetings Act does not provide for audio-only or telephone conferencing. See 18-OMD-25. The Act authorizes video teleconferencing in limited circumstances. Id.; see Ky. Rev. Stat. 61.826. The Act defines "video teleconference" as “one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment.” Ky. Rev. Stat. 61.805(5).
The statute does not specify. Attorney General opinions conclude, however, that any participation by telephone, whether to obtain a quorum or to allow voting by non-present board members, is a violation of the law. Op. Att’y Gen. 02-0040; see also Op. Att’y Gen. 01-0256 (non-present board members cannot be counted by telephone to form a quorum or vote by voice or facsimile); Op. Att’y Gen. 00-423 (deliberation or act by teleconferencing would be a violation of the open meetings law).
As with electronic meetings, conference calls and video/Internet conferencing generally violate the Act. However, there is a new law, effective July 30, 2021, that allows remote participation via telephonic or video technology for the public proceedings of certain public bodies that comply with the requirements for remote participation. 1 M.R.S. §403-B (2021).
A telephone conference call in which a quorum of members is conducting business simultaneously is a "meeting" that must comply with the Act. OMA Manual, at 1-8; but see 7 OMCB Opinions 193 (2011) (sequential or written communications among members does not constitute a meeting and, therefore, the Act would not apply). Thus, if a public body meets via telephone or video conference, it must afford the public access to the discussion. Such access might include a speaker-phone available at a previously announced location. See OMA Manual, at 3-3; see also Tuzeer v. Yim, LLC, 201 Md. App. 443, 471 (2011).
State agencies, boards, commissions, departments, statewide public pension plans, and committees thereof may conduct meetings by telephone or other electronic means, provided that: (1) all members can hear one another and can hear all discussion or testimony; (2) members of the public who are present at the regular meeting location can hear all discussion and votes, and can participate in testimony; (3) at least one member is physically present at the regular meeting place; and (4) all votes are conducted by roll call. Minn. Stat. § 13D.015, subds. 1 and 2. Individuals may also monitor the meeting by electronic means if feasible. Minn. Stat. § 13D.015, subd. 4. Notice of the meeting must be provided, stating that some members may participate by electronic means. Minn. Stat. § 13D.015, subd. 5. In addition to the regular method of notice, the entity must post a notice on its website within ten days of the meeting. Minn. Stat. § 13D.015, subd. 5.
All other entities subject to the Open Meeting Law may conduct meetings by telephone only if the presiding officer, chief legal officer, or chief administrative officer of the governing body determines that an in-person meeting or a meeting conducted by interactive television is not practical or prudent due to a health epidemic or public emergency. Minn. Stat. § 13D.021, subd. 1(1). In such an event, a meeting by telephone or other electronic means may be conducted on the condition that: (1) all members can hear one another and can hear all discussion or testimony; (2) members of the public present at the regular meeting location can hear all discussion and all votes, unless attendance at the meeting location is not feasible due to the health pandemic or emergency; (3) at least one member of the governing body, the chief legal officer, or the chief administrative officer is physically present at the regular meeting place, unless attendance at the meeting location is not feasible due to the health pandemic or emergency; and (4) all votes are conducted by roll call. Minn. Stat. § 13D.021, subd. 1.
Any entity subject to the Open Meeting Law may conduct meetings by interactive television so long as: (1) all members can hear and see one another and can hear and see all discussion or testimony; (2) members of the public present at the regular meeting location can hear and see all discussion, testimony and votes; (3) at least one member is physically present at the regular meeting place; and (4) each location at which a member is present is open and accessible to the public. Minn. Stat. § 13D.02, subd. 1.
Telephone polls may not be used to transact public business. Op. Att'y Gen. April 20, 1984 to George S. Smith; Op. Att'y Gen. May 14, 1987 to Sharron F. Abide. If telephone polls are taken, the deliberations must have taken place pursuant to the Open Meetings Act. Board of Trustees v. Mississippi Publishers Corporation, 478 So. 2d 269, 278-79 (Miss. 1985); see also, Op. Att'y Gen. Sept. 26, 1990 to Katherine Skelton (telephone conference call may be used by a board member to participate in a lawfully called meeting provided there is a quorum physically present and it is done in a manner that will allow the public in attendance to hear all discussion and deliberations regarding any and all matters taken up at such a meeting); § 83-23-219(3) (Mississippi Life and Health Ins. Guaranty Association to establish regular times and places for conference calls); Op. Att'y Gen. Jan. 23, 2001 to Kenneth Mayfield (board of trustees for a school district may not formulate policy by way of a telephone conference or poll).
The convening of a quorum of the constituent membership of a public agency or association to hear, discuss, or act upon a matter over which the agency has control constitutes a meeting. A meeting can be either in-person or electronic, as in a conference call. Mont. Code Ann. § 2-3-202.
Neb. Rev. Stat. §84-1411(2) (Cum. Supp. 2017) allows videoconference meetings for various statewide public bodies, subject to certain restrictions (i.e., no more than one-half of bodies' meetings in a calendar year may be by videoconference, and at least one member of body must be present at each site of the videoconference). Neb. Rev. Stat. §84-1411 (3) allows the telephonic meetings for various or regional state-wide bodies, subject to similar restrictions. Emergency meetings of public bodies may be held "by means of electronic or teleconferencing equipment." Neb. Rev. Stat. §84-1411(4) (Cum. Supp. 2017).
Limited exception for conference calls if local rule or ordinance specifically permits for situations in which it is "difficult or impossible" for a member to attend the meeting in person, but each member participating by conference telephone must be identified when speaking, all participants must be able to hear each other at the same time, and members of the public attending the meeting must be able to hear any member of the public body who speaks during the meeting. NMSA 1978 § 10-15-1(C).
Cheevers v. Town of Union, 1998 N.Y. Misc. LEXIS 758 (Sup. Ct., Broome Cty. Sept. 4, 1998) (four members of five-member board discussed an issue in a series of telephone calls; held to be a public meeting subject to Open Meetings Law because “the failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting’ circumvents the intent of” the OML; action taken was voided).
The Open Meetings Law provides that a body may hold a meeting by conference call but must provide a location and means for members of the public to listen to the meeting. The body may charge a fee of up to $25.00 to each listener to defray the cost of providing the necessary location and equipment. G.S. § 143-318.13(a).
The statute requires a public body's members to be physically present to vote to be considered present, and for the purpose of determining the presence of a quorum. Therefore, a prearranged conference call among a majority of a public body's members would not be effective for conducting voting or conducting official business. The apparent intent of the statute is to prohibit such prearranged conference calls from occurring outside public view or hearing. Ohio Rev. Code § 121.22(C).
Also, seriatim, repetitive telephone calls prearranged among a majority of a public body's members probably would not get around the openness mandate of the statute. See State ex rel. Cincinnati Post v. City of Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996) (prearranged seriatim, repetitive face-to-face meetings of less than a majority of a city council's members had to be open as a "meeting" where a majority of council attended when the sessions were considered together).
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).
Electronic communications may be used to facilitate if there is an opportunity for public presence. The key language on the issue is found in section 30-4-70(C), which provides: "No chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power." While the quoted section has not been the subject of litigation, the law clearly precludes a public body from using e-mail, Twitter, Facebook or telephone communications to act.
Under T.C.A. § 8-44-108, participants in a meeting may use electronic or other communications as long as every participant is capable of simultaneously hearing the other members of the meeting and it is possible to speak among the participants throughout the meeting. Further, if a physical quorum is not present at the meeting, the governing body must make a finding of "necessity" for electronic participation. Id. This statute, by its terms, applies only to state government, and not to local government or to the state university board of regents or board of trustees. Op. Att'y Gen. No. 99-152 (Jan. 24, 1983). Also, each part of the meeting required to be open to the public must be audible to the public at the location specified in the notice of the meeting. A 2017 amendment loosened these restrictions for an emergency communications district board of directors meeting. T.C.A. § 8-44-108(d)
The Act authorizes meetings by telephone conference only under certain circumstances. Such meetings may only be held if an emergency or public necessity exists and convening at one location is "difficult or impossible," or the meeting is held by an advisory board. Tex. Gov’t Code§ 551.125(b). In addition, such meetings must comply with the Act's notice requirements: the location in the notice must specify the usual place where the governmental body meets, the call must be audible to the public at such location and shall be tape-recorded, two-way communication must be provided, and the identification of each speaker must be clearly stated prior to speaking. Id. § 551.125(c)-(f).
The Act also limits the circumstances under which meetings may be held by videoconference calls. Id. § 551.127. A meeting of a state governmental body or a governmental body that extends into three or more counties may be held by videoconference call only if a majority of the quorum of the governmental body is physically present at one location of the meeting. Id. § 551.127(c). Meetings of other governmental bodies may only be conducted by videoconference call if a quorum of the governmental body is physically present at one location of the meeting. Id. § 551.127(b). Meetings by videoconference call must comply with the notice requirements applicable to other meetings, and also must specify the location where each participating member will be located, where the quorum is physically situated, and specify the intent to have a quorum present at that location. Id. § 551.127(d), (e). The open portions of the videoconference must be visible and audible to the public at each location where participating members are located, and an audio recording must be made available to the public. Id. § 551.127(f), (g). If technical difficulties render portions of a meeting by videoconference call inaccessible to the public at any remote location, the governmental body must recess or adjourn the meeting. Op. Tex. Att’y Gen. No. DM-480 (1998). The Attorney General has opined that the meeting of members must occur within the State of Texas. Op. Tex. Att’y Gen. No. JC-0487 (2002) ("[T]he Open Meetings Act prohibits the Board of Regents of the University of Texas System from holding a meeting of a quorum of its members in Mexico, regardless of whether the Board broadcasts the meeting by videoconferencing technology to all geographic areas in Texas where component institutions of the University of Texas System are located.")
The Board of Pardons and Paroles may hold a hearing on clemency matters by telephone conference call. Tex. Gov’t Code§ 551.124. The governing body of an institution of higher education may meet by telephone conference call, so long as each part of a meeting that is required to be open to the public can be heard by the public at the body's normal meeting place. Id. § 551.121. Such telephone conference calls must be limited to special called meetings requiring "immediate action" when it is "difficult or impossible" to convene a quorum of the board, and they are subject to the notice requirements applicable to other meetings. The Texas Board of Criminal Justice may hold emergency meetings by telephone conference call. Id. § 551.123. The Texas Higher Education Coordinating Board may hold an open meeting by telephone conference call or video conference call in order to consider a higher education impact statement if preparation thereof is to be provided under the rules of either the Texas House of Representatives or the Texas Senate. Id. § 551.126.
A governmental body may also broadcast an open meeting over the Internet, and must provide in the notice of the meeting the Internet site that broadcasts the meeting. Id. § 551.128.
An “electronic meeting,” defined as “a public meeting convened or conducted by means of a conference using electronic communications,” is subject to the Open Meetings Act. Utah Code § 52-4-103(5). The Act’s definition of “meeting” also indicates that a meeting can be “by means of electronic communications.” See id. § 52-4-103(6)(a).
“[O]ne or more of the members of a public body may attend a regular, special, or emergency meeting by electronic or other means without being physically present at a designated meeting location.” 1 V.S.A. § 312(a)(2)(A). In fact, a quorum of the members of a public body may, participate in the meeting via electronic means. 1 V.S.A. § 312(a)(2)(D).
“If one or more members attend a meeting by electronic or other means, such members may fully participate in discussing the business of the public body and voting to take an action, but any vote of the public body that is not unanimous shall be taken by roll call.” Id. § 312(a)(2)(B). Moreover, “[e]ach member who attends a meeting without being physically present at a designated meeting location shall: (i) identify himself or herself when the meeting is convened; and (ii) be able to hear the conduct of the meeting and be heard throughout the meeting.” Id. § 312(a)(2)(C). If, however, a quorum or more of the members of a public body attend a meeting without being physically present at a designated meeting location, “[a]t least one member of the public body, or at least one staff or designee of the public body, shall be physically present at each designated meeting location” identified on the agenda. Id.
All public bodies may conduct any meeting wherein the public business is discussed or transacted through electronic communication means under specified circumstances if certain procedures are followed. Va. Code Ann. § 2.2-3708.2. “‘Electronic communication’ means the use of technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities to transmit or receive information.” Va. Code Ann. § 2.2-3701.
In 1996, the State Auditor held that two members of a three-member board violated the OPMA when one board member called another member to discuss agency business. The calls lasted from one minute to up to one hour. In 1996, the Auditor also found that a board that operates a public ambulance service in Skamania County violated the Act when two members of a three-member board used a third party to exchange information between the members which ultimately became part of an agreement signed by the board.
A 1999 amendment to the Open Meetings Act definition of "meeting" explicitly states, "meetings may be held by telephone conference or other electronic means." W. Va. Code § 6-9A-2(4) Most state agencies provide a conference call number to facilitate participation in the meeting by its members and electronic attendance by members of the public. The 800-access number is often printed in the state register.
If a government body meeting were held via electronic means such as email, text or instant messaging, social media, or online discussion boards it would be subject to the requirements of the Open Meetings Law.
Conference calls involving members of a governmental body are considered meetings. Therefore, such calls must reasonably be accessible to the public and notice must be provided. See 69 Op. Att’y Gen. 143; Wis. Stat. § 19.82. “Any meeting conducted via a telephone conference call is subject to all the provisions of the open meetings law, secs. 19.81–19.89, Stats., including the public notice requirements under sec. 19.84, Stats.” 69 Op. Att’y Gen. Wis. 143.