City Council Meetings in a COVID World: Maintaining Quorums and Technology
The onset of the COVID-19 crisis initially loosened the rules for how local governments may hold open meetings via teleconference, but earlier this month as Texas enters the latest operational phase for opening up regular business, the state of play has changed again for virtual city council meeting participation.
When the Open Meetings Act was first adopted as article 6252-17 of the Revised Civil Statutes in 1967, “videoconferencing” as we know it today was still the stuff of science fiction. The Jetsons got calls on their video phone as far back as 1962 (and maybe even presaged facial filters as well). Captain James T. Kirk regularly used his ship’s viewscreen to speak with friends and enemies alike onboard the bridge of the Starship Enterprise on Star Trek from 1966-1969. In 1968’s 2001: A Space Odyssey, Dr. Heywood Floyd essentially “Facetimes” his daughter from a space station.
By the time the legislature codified the act as Government Code chapter 551 in 1993, other sci-fi gadgets like cell phones had become reality. But, it would not be until 2001, 34 years (and three Star Trek series) after the Act was initially adopted, that the legislature would add Section 551.127 explicitly stating that government bodies are not prohibited “from holding an open or closed meeting by videoconference call,” provided they meet the statutory requirements.
Governor Greg Abbott temporarily suspended several of these requirements on March 16, 2020 in response to the Coronavirus (COVID-19) disaster he declared on March 13, 2020. We wrote about which specific provisions got suspended in our March 26 blog post. Since that time, many in city government have no doubt enjoyed being able to remotely drop into meetings from a laptop or their phones in the comfort of their own homes.
As of Gov. Abbott’s latest executive order on June 3, however, there is no longer any occupancy limit on local government operations. With those occupancy restrictions lifted, many municipalities will begin to transition back to having regular in-person city council meetings. As they do so, though videoconferencing will still be a tool at their disposal, it will be important for city governments to remember the requirements of Section 551.127.
Under the statute, a member of a governmental body participating by videoconference is “present” (unless their connection drops), but city governments still need a quorum of members physically present at one location of the meeting. All of the usual notice requirements still apply, and the notice must specify the physical location of the quorum and the intent to have a quorum present there.
Audible and Visible Requirements
The portions of meetings open to the public must be audible and visible to the public even if they are by means of videoconference. Should the public lose the ability to hear or see the meeting, because of a loss of connection or some other technological mishap, the meeting must go into recess until the problem is fixed. If the problem is not fixed within 6 hours, the meeting must be adjourned.
The statute also requires that anyone attending a meeting through videoconference have two-way communication at all times, with voices audible and faces “clearly visible.” The audio-visual connection 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 essence, there cannot be any confusion as to who is speaking, what they are saying, and how they are saying it during the open portion of the meeting. At least an audio recording must be made available to the public after the meeting.
Minimum Technology Requirements
The requirements set out by 551.127(i) link the minimum acceptable technology for videoconferencing public meetings to the Texas Department of Information Resources’ “Videoconferencing Guidelines.” The full guidelines are available here. Some are fairly straightforward. For example, everyone at the meeting must have “full view” of at least one color monitor at least 27-inches in size set up for the audience at the meeting site to view remote participants. However, other provisions in the statute, such as “ITU H.323 or H.323/SIP (Session Initiation Protocol) for videoconferencing over the public Internet” and “a minimum 384 KB transmission speed,” may require having someone on hand with some measure of technological prowess.
Best to Test
The guidelines also recommend testing the connection to the person videoconferencing into a meeting within an hour of the start of the meeting to make sure everything is working correctly. Obviously, the more reliable the connection and the better the audio-visual equipment a municipality uses, the less likely it would be to have an issue. Municipalities that are unsure as to whether they can meet the minimum requirements or not should probably try to stick to in-person meetings as much as possible. However, practically speaking, testing technology before one must rely on it is always good advice for any city government.
By Randle Law Office attorney Byron Brown and summer intern Joe Holloway.
Joe Holloway is a summer intern with Randle Law Office. Mr. Holloway is a former journalist and educator pursuing a J.D. from the University of Houston Law Center. He serves as the UHLC Student Director for the Houston Young Lawyers Association, the President of the Space Law Society, Student Bar Association Executive Board Secretary, and Vice-Chair for Public Relations on the Board of Advocates. He received his master’s degree in journalism from the University of Texas at Austin in 2011 and his bachelor’s degree in journalism from Baylor University in 2009.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.
Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.