December 11, 1986
Mr. Karl.E:Bishop Opinion No. JM-584
Executive Director
Texas Board of Licensure far Re: Whether the Texas Board of
Nursing Home Administrators Licensure for Nursing HOl!X
4800 N. Lamar Administrators may hold meetings
Austin, Texas 78756 by teleconference call
Dear Mr. Bishop:
You ask whether the Texas Board ‘of Licensure for Nursing Home
Administrators may occasionally meet and votes on cases by telecon-
ference call. You in essence ask whether a meeting by teleconference
call would comply with the Texas Open Meetings Act, article 6252-17,
V.T.C.S.
The Open Meetings Act provides in part:
Section 1. As used in this Act:
(a) "Meeting' means any deliberation between a
quorum of memberr;of a governmental body at which
any public business or public policy over which
the governmental body has supervision or control
is discussed or considered, or at which any formal
action is taken. It shall not be construed that
the intent of this definition is to prohibit the
gathering of mem',ars of the governmental body in
numbers of a quorum or more for social functions
unrelated to the: public business which is con-
ducted by the hollyor for attendance of regional,
state, or national conventions or workshops as
long as no forma:.action is taken and there is no
deliberation of public business which will appear
on the agenda of the respective body.
. . . .
Sec. 2. (a) Bxcept as otherwise provided in
this Act or rpecifically permitted in the
Constitution, every regular, special, or called
meeting or sass& of every governmental body
shall be open t: the public; and no closed or
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Mr. Karl E. Bishop - Page 2 (JM-584)
executive meeting or session of any governmental
body for any of the purposes for which closed or
executive meetin(Zs or sessions are hereinafter
authorized shall'.be held unless the governmental
body has first been convened in open meeting or
session for which notice has been given as
hereinafter proviiad and during which open meeting
or session the presiding officer hai publicl;
announced that a closed or executive meeting or
session will be held and identified the section or
sections under this Act authorizing the holding of
such closed or executive session.
. . . .
Sec. 3A. (a'l Written notice of the date,
.hour, place, and subject of each meeting held by a
governmental body shall be given before the
meeting as prescribed by this section, and any
action taken by 3 governmental body at a meeting
on a subject which was not stated on the agenda in
the notice nested for such meetina is voidable.
is made by a member of the general public or~by a
member of the gov%mental body. Any deliberation,
discussion, or decision with respect to the
subject about which inquiry was made shall be
limited to a proFosa1 to place such subject on the
agenda for a suhs;equentmeeting of such govern-
mental body for which notice has been provided in
compliance with this Act.
Sec. 4. (a) Any member of a governing body
who wilfully calls or aids in calling or
organizing a specj_alor called meeting or session
which is closed ‘to the public, or who wilfully
closes or aids Ln closing a regular meeting or
session to the lntblic, or who wilfully partici-
pates in a regula:?,special, or called meeting or
session which 11% closed to the public where a
closed meeting 1;~not permitted by the provisions
of this Act. . . .
(b) Any memhcr or group of members of a
governing body who conspire to circumvent the
provisions of thLs Act by meeting in numbers less
than a quorum for the purpose of secret
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Mr. Karl E. Bishop - Page 3 (J-M-584)
deliberations in contravention of this Act shall
be guilty of 6. misdemeanor. . . . (Emphasis
added).
V.T.C.S. art. 6252-17.
The Open Meetings Act tioesnot expressly address the conduct of a
meeting by telephone conference call. You ask only about occasional
teleconference call meetini;s by the Board of Licensure for Nursing
Home Administrators, but cur answer cannot be so limited and will
apply to all meetings of a:.1governmental bodies subject to the act.
In construinr!the Ouen Meetings Act, we are mindful that its intended
purpose is & open'governmenial decision-making to the public. See
Cox Enterprises, Inc. v. Board of Trustees of the Austin Independ=
School District, 706 S.W.2d?#56 (Tex. 1986).
The act defines a "meeting" as "any deliberation between a quorum
of members of a government;J body" at which certain matters are dis-
cussed or at which any formsI action is taken. V.T.C.S. art. 6252-17,
§l(a). Deliberations by tcilephonecall would fit this definition; a
Texas court has in fact ind,icatedthat members of a governmental body
would.violate the Open Meetings Act by holding secret deliberations by
telephone. See Bitt v. Mab,;L,687 S.W.2d 791 (Tex. App. - San Antonio
1985, no wriq Elizondo v. 'Williams,643 S.W.2d 765 (Tex. App. - San
Antonio 1982, no writ) (schGo1 board members enjoined from conducting
telephone conferences to discuss public business or .public policy).
See also Stockton Newspapers, Inc. v. Members of the Redevelopment
.Agency of the City of Stcce, 214 Cal. Rptr. 561 (Cal. App. 3d
1985); Minnesota Education Association v. Bennett, 321 N.W.Zd 395
(Minn. 1982); Board of Trurzees, Huntley Project School District No.
24, Worden v. Board of Coul":yCommissioners of the County of Yellow-
stone, 606 P.2d 1069 (Mont. 1980); State v. Vermont Emergency Board,
394 A.2d 1360 (Vt. 1978:l (cases discussing whether meeting by
telephone was permitted by open meeting laws in other states).
The determination that deliberations by telephone could fall
within the definition of %?etiag" does not end our inquiry. Meetings
subject to the act must "be open to the public," and must comply with
statutory requirements for notice and procedure. Some of the proce-
dural provisions indicate that the legislature assumed that members of
a governmental body would appear personally at the meeting. Section
l(a) provides that members of a governmental body are not prohibited
from gathering for social occasions or attendance at national conven-
tions and workshops, gathe,rings that necessarily involve personal
attendance. Section 3A exempts from the notice requirement of article
6252-17, V.T.C.S., limited answers to "an inquiry made at such
meeting . . . made by a mem',erof the general public or by a member of
the governmental body." V.T.C.S. art. 6252-17. §3A. The public has
no right under the act l:o speak at meetings; that is a matter
controlled by the discreti,on of the governmental body or, in some
cases, by a particular statute. Attorney General Opinion H-188
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Mr. Karl E. Bishop - Page 4 (~~-584)
(1973); see, e.g., V.T.C.S. art. 1269k. §13a(a); Tax Code art. 26.06.
Nonetheless, the section 3A ,procedurefor handling inquiries from the
public rests on the assumpt:Lonthat board members will be able to hear
people attending the meet1r.g. Section 3A also contemplates that the
meeting shall be held in 6. "place" specified in the notice. These
provisions at least suggesl: that the legislature assumed that board
members would be physically present at meetings subject to the Open
Meetings Act.
The Texas Supreme Court has determined that an open meeting may
not be convened without a qnorum present in the meeting room, and has
stated as follows:
The newspaper argues that the Act clearly contem-
plates that a quorum be present at the meeting
place, that section 2(a) requires an open meeting
to be convened before the Board may go into
executive session, and that there is no 'meeting'
unless a quorum is present and physically able to
'deliberate.' Tcr:. Rev. Civ. Stat. Ann. art.
6252-17. 981(a) and (b).
We agree with the newspaper. By all appear-
antes. only two members may have. been present.
?
The public*is entitled to know which membeis are
present for the cs.osed session and whether there
is a quorum. We hold that the School Board failed
to comply with the Act's requirements. (Emphasis
added);
Cox Enterprises, Inc. v. BaElrd of Trustees of the Austin Independent
School District, 706 S.W.2d at 959. The court did not address the
question of telephone deliocrations, but its language suggests that
the public interest requirss board members to attend meetings in
person.
The legislature's silence on telephone meetings for governmental
bodies can be contrasted with its express authorization of such
meetings for the directors, shareholders, and committees of a corpora-
tion. Bus. Corp. Act art. !,.lO(C). An examination of this legisla-
tive authorization and the underlying legislative policy leads us to
believe that telephone conference calls do not comply with the Texas
Open Meetings Act and that the legislature would expressly authorize
governmental bodies to meet by telephone conference if it wished them
to have that power.
Article 9.10 of the Texas Business Corporation Act states in
part:
C. Subject to the provisions required or ?
permitted by th:.r;Act for notice of meetings,
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Mr. Karl E. Bishop - Page 5 (JM-584)
unless otherwise-restricted by the articles of
incorporation or by-laws, shareholders, members of
the board of directors, or members of any com-
mittee designatei.by such board, may participate
in and hold a meeting of such shareholders, board,
or committee by neans of conference telephone or
similar communications equipment by means of which
all persons partj.cipatingin the meeting can hear
each other, and participation in a meeting
pursuant to this Section shall constitute presence
in person at suc'zmeeting, except where a person
participates in the meeting for the express
purpose of objecting to the transaction of any
business on the ground that the meeting is not
lawfully called or convened. (Emphasis added),
Bus. Corp. Act art. 9.10(C). The authorization for telephone meetings
was added in 1973. Acts 1973, 63rd Leg., ch. 545 at 1486, 1511. A
&mment to article 9.10(C) states that
[t]he convenience of meetings by conference tele-
phone should encourage and. permit more frequent
and timely meetings and savings of time and
expenses.
Bus. Corp. Act art. 9.10(C), Comment of Bar Committee -- 1967 to 1973
(Vernon 1980). The commentary to section 8.20(b) of the Model
Business Corporation Act, which also authorizes meetings by telephone,
enlarges on the reasons fcr enacting such a law. The comment notes
that the common law concerning directors' meetings has traditionally
required that the directors attend in .person. Model Bus. Corp. Act
Ann. 58.20(b), Official I:omment (3d ed. 1986). The traditional
meeting provided the opportunity for interchange that is possible when
directors are physically pr'esentin the same room, but the authors of
the model act concluded i:hat modem technology could provide this
advantage even though the members of the board are physically
dispersed.
Article 9.10(C) of th,e Texas Business Corporation Act allows
conference calls "unless cltherwise restricted by the articles of
incorporation or by-laws. . . ." Bus. Corp. Act art. 9.10(C); -see
also Model Bus. Corp. Act Ann. 88.20(b).
The corporation itself determines whether conference calls are
permitted. Meetings of shareholders and directors are not open to the
public. See generally Bus. Corp. Act arts. 2.24, 2.25, 2.37 (place
and notice of shareholders' and directors' meetings). Thus, a corpora-
tion need not consider any public interest when it decides to conduct
a meeting by telephone conierence. The policies supporting article
9.10 of the Business Corporation Act accordingly do not address the
interests of an audience.
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Mr. Karl E. Bishop - Page 6 (JM-584)
In contrast, the Open 'Meetings Act is intended to further the
public interest in access to the decision making processes of govern-
mental bodies. See Cox Enterprises, Inc. v. Board of Trustees of the
Austin Independ ant School '2 , s; Toyah Independent School
District v. Pecos-Barstow I?- Ident School District, 466 S.W.2d 377
(Tex. Civ. Ann. - San Antonio 1971, n.o writ): Acts 1967, 60th Leg.,
ch. 271, S?,'& 597 (emergency clause of Open-Meetings Act). Members
of the public have an interest in observing the demeanor as well as
hearing the voices of the participants in an open meeting, and we
believe the Open Meetings Act protects that interest. In a case
Involving participation in a meeting by telephone conference call, the
Supreme Court of Vermont stated as follows:
We are directed to no authority, by either
party, dealing with the subject of attendance at
a 'meeting' thror.gh the medium of a telephone
conference call. However useful its role in
formulating policy, it has serious drawbacks as
a means of putting that policy into effect.
Questions of identity of a claimed participant
could easily aris;. The personal contact that is
so often an effecTive ingredient of a meeting is
absent. Whatever, may be the future status of
such participatior~ if and when specifically
authorized, we cannot countenance it now, in.
the absence of &me clear provision for it.
Immediately suggested is the rhetorical question
of how public parl:i.cipation
in such a meeting, the
goal of the legislation here under consideration,
could ever be achieved, even with the advance
notice contemplated by the statute. Not only the
'right-to-know' is protected by the statute, but
also the right to 'bepresent, to be heard, and to
participate. (Emphasis added).
State v. Vermont Emergency Board,
-- 394 A.2d 1360 (Vt. 1978).
The Texas Open Meetings Act does not authorize the public to
participate in meetings b? speaking to the persons attending the
meeting. The other remarks of the Vermont court are relevant to the
Texas Open Meetings Act. Mlzrtbersof the public who can only hear what
a board member says will no':know whether the silent board members are
paying attention.
1. The Vermont Open Yeetings Law does not expressly authorize
members of the public to speak out at public meetings. See Vt. Stat.
Ann. title 1, 95311-314. The law does require the minutes of a
meeting to identify all members of the public body present and all
"other active participants in the meeting." -
Id. 6312(b)(l)(A).
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L Mr. Karl E. Bishop - Page 7 (JM-584)
A meeting conducted br teleconference call among geographically
dispersed board members is 'oat"open to the public" as required by the
Open Meetings Act. It is :Eor the legislature to determine whether
governmental bodies should have authority to meet on occasion by
teleconference call. It 113 for the legislature to establish limita-
tions on and guidance for such meetings. Until the legislature has
granted it that power, the Texas Board of Licensure for Nursing Home
Administrators may not meet and vote on cases by telephone conference
call.
SUMMARY
In the absence #ofspec.ificlegislative authorisa-
tion, a governmernal body that meets by telephone
conference call wi:L:Lnot comply with the Texas Open
Meetings Act, articl~e6252-17, V.T.C.S.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2619
Untitled Texas Attorney General Opinion
Combined Opinion