Untitled Texas Attorney General Opinion ( 1998 )

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DAN MORALES
ATTORNEY
GENERAL August 5, 1998
Ms. Carolyn Purcell Opinion No. DM-480
Executive Director
Department of Information Resources Re: Whether, under Government Code section
P.O. Box 13564 551.126, a governmental body must recess or
Austin, Texas 7871 l-3564 adjourn a meeting held by videoconference call if
technical difficulties render portions of the
meeting inaccessible to the public at a remote
location, and related question (RQ-1098)
Dear Ms. Purcell:
Under Government Code section 55 1.126(e),’ if a governmental body chooses to conduct a
meeting by videoconference call, each portion of the open meeting must be visible and audible to
the public at each location listed in the meeting notice. Additionally, each location listed in the
meeting notice must, in accordance with section 551.126(g), have two-way communication with
each other location during the entire meeting. You ask whether a governmental body must recess
or adjourn its meeting if technical difficulties render portions of the meeting inaccessible to the
public at a remote location. We conclude that it must. You also ask whether the governmental body
may avoid having to recess or adjourn the meeting in the event oftechnical difficulties by specifying
in its meeting notice that, if technical difficulties occur, the quorum will continue to conduct its
business. We conclude it may not.
As you point out, in 1997 the legislature adopted Government Code section 551.126 to
permit a governmental body to hold ameeting viavideoconference call.z The legislature’s effort was
motivated, at least in part, by a desire to overcome a 1993 opinion of this office in which we stated
that a governmental body could not conduct a meeting by videoconference call in the absence of
‘The Seventy-fifth Legislature adopted two versions of Government Code section 551.126. The first, Act
ofMay 23,1997,75th Leg., R.S., ch. 944,s 1, 1997 Tex. Gen. Laws 2952,2952, permits the Texas Higher Education
Coordinating Board to hold an open meeting by telephone conference call or videoconference call in certain
circumstances. The second, Act of May 30, 1997,7Sth Leg., RX, ch. 1038,§ 1, 1997 Tex. Gen. Laws 3896,3896-97,
is the provision about which you ask. Throughout this opinion, we will use the term “section 551.126” to refer only
to the provision about which you ask.
‘See Senate Corn. on State Affairs, Bill Analysis, C.S.S.B. 839,75th Leg., R.S. (1997); cf: House Comm. on
State Affairs, Bill Analysis, H.B. 1772, 75th Leg., R.S. (1997) (analyzing bill that was substantially identical to S.B.
839 as finally passed).
Ms. Carolyn Purcell - Page 2 (DM-480)
express statutory authorization to the contrary.’ Legislators apparently believed that, using existing
technology, persons interested and participants in a public meeting can observe the demeanor of all
participants.4
In our view, the language of the statute makes abundantly clear that the legislature intended
the open portions of a meeting by videoconference call to be visible and audible to the public at
every location the governmental body listed in its notice:
(a) Except as otherwise provided by this section, this chapter does not
prohibit a governmental body from holding an open or closed meeting by
videoconference call.
(b) A meeting may be held by videoconference call only if a quorum of
the governmental body is physically present at one location of the meeting.
(c) A meeting held by videoconference call is subject to the notice
requirements applicable to other meetings in addition to the notice
requirements prescribed by this section.
(d) The notice of a meeting to be held by videoconference call must
specify as a location of the meeting the location where a quorum of the
governmental body will be physically present and specify the intent to have
a quorum present at that location. In addition, the notice of the meeting must
specify as a location of the meeting each other location where a member of
the governmental body who will participate in the meeting will be physically
present during the meeting. Each of the locations shall be open to the public
during the open portions of the meeting.
(e) Each portion of a meeting held by videoconference call that is
required to be open to the public shall be visible and audible to the public at
each location specified under Subsection (d).
(f) The governmental body shall make at least an audio recording of the
meeting. The recording shall be made available to the public.
(g) Each location specified under Subsection (d) shall have two-way
communication with each other location during the entire meeting. Each
participant in the videoconference call, while speaking, shall be clearly
visible and audible to each other participant and, during the open portion of
‘See House Comm. on State Affairs, Bill Analysis, H.B. 1772, 75th Leg., R.S. (1997); Attorney General
Opinion DM-207 (1993) at 3.
‘.!k House Comm. on State Affairs, Bill Analysis, H.B. 1772, 75th Leg., R.S. (1997); Attorney General
Opinion DM-207 (1993) at 2-3 (citing Attorney General Opinion JM-584 (1986) at 4,6).
p. 2722
Ms. Carolyn Purcell - Page 3 (DM-480)
the meeting, to the members of the public in attendance at a location of the
meeting.
(h) The Department of Information Resources by rule shall specify
minimum standards for audio and video signals at a meeting held by
videoconference call. The quality of the audio and video signals perceptible
at each location of the meeting must meet or exceed those standards.
(i) The quality ofthe audio and video signals perceptible by the members
of the public at each location of the meeting must:
(1) meet or exceed the quality of the audio and video signals
perceptible by the members of the governmental body participating in the
meeting; and
(2) be of sufficient quality so that members of the public at each
location of the meeting can observe the demeanor and hear the voice of each
participant in the open portion of the meeting.
(j) Without 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. [Emphasis added.]
Subsections (e), (g), (h), and (i) in particular compel us to conclude, in answer to your first
question, that if, due to technical difficulties, members of the public gathered at a location listed in
the subsection (d) notice cannot see or hear the open meeting, the meeting must be recessed or
adjourned. As we read subsection (g), for example, if one listed location loses two-way
communication with another listed location during any part of the open meeting, then the meeting
will not satisfy the statute. Likewise, under subsections (h) and (i), if audio or video quality at any
location listed in the notice fails to meet the statutory and regulatory standards,5 members of the
public at each location will be unable to observe the voice and demeanor of each participant in the
open meeting. Consequently, the meeting cannot continue.6
We conclude, in answer to your second question, that a governmental body may not avoid
having to recess or adjourn the meeting in the event of technical difficulties by stating in its notice
that the meeting will continue in such an event. You suggest that proper notice to the public that the
quorum of the governmental body will continue its meeting despite the technical diff%ulties will
5See Tex. Dep’t of Information Resources, 22 Tex. Reg. 10870 (1997), adopted 23 Tex. Reg. 1302 (1998)
(codified at 1 Tex. Admin. Code $201.16).
‘But see Rivera Y. City ofLaredo, 948 S.W.2d 787,793 (Tex. App.--San Antonio 1997, wit denied) (tindiig
that city violated Open Meetings Act by continuing recessed meeting hvo days after meeting convened without posting
notice of continuation of meeting).
p. 2723
Ms. Carolyn Purcell - Page 4 (DM-480)
avoid having the members of the governmental body, who may have gathered at one location from
far-flung points of the state and who may be uncompensated, wasting time and money while the
difficulties are resolved.7 While we understand your concerns, in our opinion Government Code
section 55 1.126(d), (e) contemplates that a member of the public may choose whether to attend a
governmental body’s meeting at the location where the quorum is present or at a remote location.
An agency that continues a meeting at the location where the quorum is present in spite of technical
difficulties that make seeing or hearing the meeting impossible at a remote location violates
subsection (e) by depriving citizens at the remote location of their right to see and hear the meeting.
The notice you suggest in no way remedies this problem.
SUMMARY
Under Government Code section 55 1.126, a governmental body must
recess or adjourn an open meeting conducted via videoconference call if
technical difficulties cause the quality of the audio or video signal to fall
below the standards set by the Department of Information Resources. The
governmental body cannot avoid this result by notifying the public that,
should technical difficulties occur, the quorum of the governmental body will
continue its open meeting.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Kymberly K Oltrogge
Assistant Attorney General
‘You articulate what you suggest to be sufficient notice: “If technical diffkxlties should cause the remote
location(s) to become no longer open to the public during any portion of the meeting that is required to be open to the
public, the remotely[]located member of the governing board will be deemed to have left the meeting, and the meeting
will continue at the location where the quorum is physically present.”
p. 2724