by David Klein and Maris Chambers

Have any of you used Skype or FaceTime to communicate with a friend or family member, such as with your child when you are out of town? These twenty-first century videoconferencing innovations have broken down logistical barriers, where everyone can be “present,” even when they are not physically there. The scope of use of these videoconferencing applications has been spanning beyond casual conversations. In particular, over the past year, the question we have been hearing more and more is, “Can a governmental entity use videoconferencing at an open meeting of board of directors or city council?”

While the short answer is that the Texas Open Meetings Act (“TOMA”), Texas Government Code, Chapter 551, permits a governmental body to hold an open (or closed) meeting by videoconference, the TOMA and Attorney General’s regulations implementing such laws establish rigid requirements for the instances and manner in which videoconferencing can be used. Before trying to hold an open meeting by videoconference, a governmental entity should evaluate these requirements and determine whether videoconferencing is practical or just too onerous. In other words, what’s good for the small governmental entity isn’t always good for the larger one, and vice versa. This article highlights some of these glaring legal requirements, but if you are considering whether to implement videoconferencing at your open meeting, a closer look at these laws and regulations is a must, as violations of the TOMA could result in making the action taken by a governmental body voidable, or, as to an official, committing a misdemeanor.

A governmental body seeking to add videoconferencing capabilities to its open meetings repertoire need to look no further for statutory guidance than Subchapter F of the TOMA. As a threshold issue, § 551.127(b) dictates that an open meeting may be held by videoconference only if a quorum of the governmental body is physically present at one location of the meeting. Thus, videoconferencing is not a vehicle for all officials to stay at home, but rather for an official who cannot attend the meeting at the usual location.

Next, both the video and audio feed of the remote official’s participation must be broadcasted live at the meeting location of the quorum. In the case of the open portion of a meeting, the videoconference stream must be visible and audible to the public at the location of the quorum at all times. The Texas Department of Information’s rules (1 Tex. Admin. Code, Chapter 209) also place regulations on the minimum size of the video equipment and quality of the audio/video stream. So, in a large auditorium or meeting room where there is no suitable audio and video equipment, complying with the TOMA can require a large expenditure of public funds.

At its core, videoconferencing for governmental entities is about two-way audio and video communication. For example, the face of each participant in the videoconference, while that participant is speaking, must be clearly visible, and the voice audible, to the other participants, and during any open portion of the meeting, to the members of the public in attendance at the physical location of the meeting where the quorum is present. In fact, the audio and video signals perceptible by members of the public must be of sufficient quality for one to observe the demeanor and hear the voice of each participant in the open portion of the meeting. The technical standards necessary to achieve this quality of two-way communication have been implemented by the Department of Information Resources (“DIR”), and such standards are robust.

Perhaps the biggest risk a governmental entity takes in utilizing videoconferencing is managing the situation when the audio or visual signal is lost, when the officials have important, time-sensitive matters to discuss and potentially act on at that meeting. Under the TOMA, if the audio or visual signal is lost, then the meeting must be recessed until the problem is resolved. So, if there is an open meeting where a time-sensitive matter must be addressed, a glitch in the videoconference stream can bring the meeting to a halt and the item is never addressed.

Procedurally, a meeting held by videoconference call is substantially similar to any other public meeting. For example, the remotely participating party is to be counted as present at the meeting for all purposes and the meeting is subject to the same notice requirements applicable to other public meetings. That being said, the notice of a meeting to be held by videoconference call must also 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. Additionally, a remotely participating party must be considered absent from any portion of the meeting during which audio or video communication with that party is lost or disconnected. Unlike a typical open meeting, the governmental body must also create (at the primary meeting site) and make available to the public an audio recording of the meeting.

Given this regulatory framework, the feasibility of videoconferencing can vary greatly from one governmental entity to another. Videoconferencing may be a viable option for smaller entities whose open meetings are rarely or sparsely attended by the public. However, for open meetings widely attended by the public, videoconferencing may present more problems than solutions. Higher public attendance necessitates more energy and expense to allow audience members to observe the demeanor and hear the voice of each participant in the open portion of the meeting. Moreover, an entirely different set of rules exists under TOMA for large governmental bodies extending into three or more counties. It is therefore essential to explore whether or not implementing a videoconferencing procedure is truly in the best interests of each particular governmental body.

David Klein is a Principal and Maris Chambers is an Associate in the Frm’s Water and Districts Practice Groups. If you or your governmental entity is considering the use of videoconferencing at its open meetings, do not hesitate to contact David at 512.322.5818 or dklein@lglawfirm.com, or Maris at 512.322.5804 or mchambers@lglawfirm.com.

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