Videoconferencing Under the Open Meetings Act. Does the Open Meetings Act (Act) allow a city council to hold a meeting by videoconference call?

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1 Videoconferencing Under the Open Meetings Act Does the Open Meetings Act (Act) allow a city council to hold a meeting by videoconference call? Yes, if certain conditions are met. See TEX. GOV T CODE Prior to legislation passed in 2013, the Act generally required that a quorum be present in one physical location in order for a governmental body to meet by videoconference. In an effort to modernize the Act to reflect the use of Internet-based communication technology, the legislature passed House Bill 2414 (Button/Deuell) and Senate Bill 984 (Ellis/Perry) during the 83rd Regular Legislative Session. Both bills amend the existing section in the Act that allows for videoconferencing. House Bill 2414 is effective immediately. Senate Bill 984 is not effective until September 1, An attorney with the Texas Legislative Council (TLC) has indicated to League staff that, once effective, both bills will be printed. In other words, TLC will not work to reconcile the two bills. Instead, city attorneys will have to look to the rules of statutory construction in order to make sense of the bills. Those rules provide that, as a general matter, if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment prevails. Id (b). The TLC attorney confirmed with League staff that House Bill 2414 was enacted later than Senate Bill 984. That means that in the case of an irreconcilable conflict House Bill 2414 will control. The most substantial difference between the bills appears to be in Section (c). Both bills expand the ability of a governmental body to use videoconferencing by eliminating the requirement that a quorum be present in one physical location. However, House Bill 2414 eliminates this requirement as to any governmental body, and Senate Bill 984 eliminates this requirement only as to governmental bodies that extend into three or more counties. Following are the amendments to Subsection (c) from House Bill 2414: (c) 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: (1) the governmental body makes available to the public at least one suitable physical space located in or within a reasonable distance of the geographic jurisdiction, if any, of the governmental body that is equipped with videoconference equipment that provides an audio and video display, as well as a camera and microphone by which a member of the public can provide testimony or otherwise actively participate in the meeting; (2) the member of the governmental body presiding over the meeting is present at that physical space; and (3) any member of the public present at that physical space is provided the opportunity to participate in the meeting by means of a videoconference call in the same manner as a person who is physically present at a meeting of the governmental body that is not conducted by videoconference call [a majority of

2 the quorum of the governmental body is physically present at one location of the meeting]. Following are the amendments to Subsection (c) from Senate Bill 984: (c) 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 the member [ a majority of the quorum] of the governmental body presiding over the meeting is physically present at one location of the meeting that is open to the public during the open portions of the meeting. Some attorneys believe the bills irreconcilably conflict, but League staff believes the bills can be harmonized. The next two questions explain how the statute should operate after both bills are effective and reconciled with existing law. What are the procedures that a governmental body must follow to meet by videoconference if a quorum will be in one physical location? 1. The meeting notice must specify where the quorum of the governmental body will be physically present and the intent to have a quorum present. See TEX. GOV T CODE (d); Senate Bill 984 1(e). 2. The video and audio feed of a remote councilmember or employee must be broadcast live at the meeting. See House Bill (a-1). 3. Each portion of the meeting held by videoconference call that is required to be open to the public must be visible and audible to the public at the location where the quorum is present. See TEX. GOV T CODE (f). 4. The location where the quorum is present, and each remote location from which a member of the governmental body participates, must have two-way audio and video communication with each other location during the entire meeting. Each participant s face in the videoconference call, while speaking, must be clearly visible and audible to each other participant and, during the open portion of the meeting, to the members of the public in attendance at the location where a quorum is present, and at any other location of the meeting that is open to the public. See Senate Bill 1(h); House Bill (h). 5. The audio and video signals perceptible by members of the public at each location of the meeting must meet or exceed minimum standards established by Texas Department of Information Resources (DIR) rules. See TEX. GOV T CODE (i). 6. The audio and video signals perceptible by members of the public at the location where the quorum is present and, any other location open to the public, must be of sufficient quality so that members of the public at each location can observe the demeanor and hear the voice of each participant in the open portion of the meeting. See House Bill (j). 7. If a problem occurs that causes a meeting to no longer be visible and audible to the public at the location where a quorum is present, the meeting must be recessed until the problem is resolved. If the problem is not resolved in six hours or less, the meeting must be adjourned. See Senate Bill 984 1(f).

3 8. The governmental body must make at least an audio recording of the meeting, and the recording must be made available to the public. See TEX. GOV T CODE (g). The special videoconference requirements set out above are in addition to requirements that otherwise apply to meetings under the Act. What are the procedures that a governmental body must follow to meet by videoconference if a quorum will not be in one physical location? 1. The meeting notice must specify the physical space, described in 2, below, and specify the intent to have the presiding officer physically present at the physical space. See TEX. GOV T CODE (d); Senate Bill 984 1(e); House Bill (e). 2. The governmental body must make available to the public at least one suitable physical space in, or close to, the city that is equipped with videoconference equipment that provides an audio and video display, as well as a camera and microphone, by which a member of the public can provide testimony or otherwise participate in the meeting. See Senate Bill 984 1(e), House Bill (c)(1). 3. The member of the governmental body presiding over the meeting must be present at the physical space described in 2, above, and the location must be open to the public. See Senate Bill 984 1(c),(e); House Bill (c)(2). 4. Any member of the public present at the physical space described in 2, above, must be provided the opportunity to participate in the meeting by means of a videoconference call in the same manner as a person who is physically present at a meeting of the governmental body that is not conducted by videoconference call. See House Bill (c)(3). 5. Each portion of the meeting held by videoconference call that is required to be open to the public must be visible and audible to the public. See Senate Bill 984 1(f). 6. The video and audio feed of a remote councilmember or employee must broadcast live at the meeting. See House Bill (a-1). 7. The physical location described in 2, above, and each remote location from which a member participates, must have two-way audio and video communication with each member who is participating by videoconference call during the entire meeting. Each participant s face in the videoconference call, while speaking, must be clearly visible and audible to each other participant and, during the open portion of the meeting, to the members of the public in attendance at the physical location described in 2, above, and at any other location of the meeting that may be open to the public. See Senate Bill 984 1(h); House Bill (h). 8. The audio and video signals perceptible by members of the public at each location of the meeting must meet or exceed minimum standards established by DIR rules. See TEX. GOV T CODE (i). 9. The audio and video signals perceptible by members of the public at each location of the meeting that is open to the public, and each remote location, are of sufficient quality so that members of the public at each location can observe the demeanor and hear the voice of each participant in the open portion of the meeting. See House Bill (j). 10. If a problem occurs that causes the meeting to no longer be visible and audible to the public at the physical space described in 2, above, the meeting must be recessed until the

4 problem is resolved. If the problem is not resolved in six hours or less, the meeting must be adjourned. See Senate Bill 984 1(f). 11. The governmental body must make at least an audio recording of the meeting, and the recording must be made available to the public. See TEX. GOV T CODE (g). The special videoconference requirements set out above are in addition to requirements that otherwise apply to meetings under the Act. Do Skype or similar platforms meet the requirements for videoconferencing under the Act? Under prior law, and the law as recently amended, DIR is responsible for establishing the minimum standards for the audio and video signals related to videoconferencing. Id (i); 1 TEX. ADMIN. CODE. ch While DIR has verbally confirmed that Skype is acceptable, there is no widely-available written guidance from DIR regarding which Internetbased communication technologies meet those standards. DIR has indicated to League staff that they expect to make few, if any, revisions to their rules in response to Senate Bill 984 and House Bill They do, however, plan to release guidelines or FAQs related to videoconferencing in the next two to three months. Any DIR rule changes will be published in the Texas Register, available at DIR videoconferencing guidelines or FAQs will be posted in the agency s document library, available at If a member of the city council participates in a meeting by videoconference call is the councilmember counted for purposes of a quorum? Yes. The Act expressly provides that a member of a governmental body who participates remotely in a meeting by means of a videoconference call must be counted present at the meeting for all purposes. TEX. GOV T CODE (a-2). May a member of the public testify at a meeting by videoconference call even when the entire council is physically present at its regular meeting location? Yes. The Act provides that [w]ithout regard to whether a member of the governmental body is participating in a meeting from a remote location by videoconference call, a governmental body may allow a member of the public to testify at a meeting from a remote location by videoconference call. Id (k). The Act does not expressly require any special notice of this type of remote participation by a member of the public. Is a videoconference call the same thing as a telephone conference call? No. The Act makes it clear that a videoconference call and a telephone conference call are alternative types of communication. See e.g., id (authorizing a governmental body to use a telephone conference call, videoconference call, or communications over the Internet to conduct certain consultations).

5 The Act defines a videoconference call to mean a communication conducted between two or more persons in which one or more of the participants communicate with the other participants through duplex audio and video signals transmitted over a telephone network, a data network, or the Internet. Id (7). The phrase telephone conference call is not defined in the Act, and there appears to be no reported case or opinion addressing its meaning. Nonetheless, one primary difference between a telephone conference and a video conference call is that a telephone conference call involves only audio communication. When may a city council hold a meeting by telephone conference? Like most governmental bodies, a city council may hold a meeting by telephone conference call only if (1) an emergency or public necessity exists; and (2) the convening at one location of a quorum of the governmental body is difficult or impossible. Id (a); see also Tex. Att y Gen. Op. Nos. GA-0908 (2012), JC-352 (2001). May a city council ever consult with its attorney at a meeting by telephone conference or videoconference? Yes. Section of the Act authorizes a governmental body to use a telephone conference call, video conference call, or communications over the Internet to conduct a public consultation with its attorney in an open meeting of the governmental body or a private consultation with its attorney in a closed meeting of the governmental body. TEX. GOV T CODE This Section only applies to a consultation with an attorney who is not an employee of the city. Id (d). An attorney who receives compensation for legal services performed, from which employment taxes are deducted by the governmental body, is an employee of the city for purposes of Section Id (e). If the attorney is an employee of the city, the city council may meet with the attorney by videoconference under the Section procedures described above.