New Laws on Videoconferencing

Under the Texas Open Meetings Act[1]

Does the Open Meetings Act (Act) allow a Charter School or School District to hold a meeting by videoconference call?

Yes, if certain conditions are met. See TEX. GOV’T CODE § 551.127. The special videoconference requirements set out below are in addition to requirements that otherwise apply to meetings under the Act.   If the below requirements are NOT met, a videoconference meeting would violate the Act, there are potential criminal liabilities and actions taken at the meeting are voidable.

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 § 551.127(d); Senate Bill 984 § 1(e).

2.   The video and audio feed of a remote Board member or employee must be   broadcast live at the meeting. See House Bill 2414 § 2 (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 § 551.127(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 2414 §    2(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 § 551.127(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 2414 § 2(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).

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 § 551.127(g).

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 § 551.127(d); Senate Bill 984 § 1(e); House Bill 2414 § 2(e).

2.   The governmental body must make available to the public at least one suitable physical space in, or close to, the School’s administrative office 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 2414 § 2(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 2414 § 2(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 2414 § 2(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 board member or employee must broadcast live at the meeting. See House Bill 2414 § 2(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 2414 § 2(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 State DIR rules. See TEX. GOV’T CODE § 551.127(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 2414 § 2(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 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 § 551.127(g).

Do Skype or similar platforms meet the requirements for videoconferencing under the Act?

Under prior law, and the law as recently amended, State DIR is responsible for establishing the minimum standards for the audio and video signals related to videoconferencing. Id. § 551.127(i); 1 TEX. ADMIN. CODE. ch. 209. While we are informed that DIR has verbally confirmed that Skype is acceptable, there is no widely-available written guidance from DIR regarding which Internet-based communication technologies meet those standards. DIR has indicated to various interest groups (TASB, TML, etc.) that they expect to make few, if any, revisions to their rules in response to Senate Bill 984 and House Bill 2414. They do, however, plan to release guidelines or FAQs related to videoconferencing by the end of 2013.

Any DIR rule changes will be published in the Texas Register, available at http://www.sos.state.tx.us/texreg/index.shtml. DIR videoconferencing guidelines or FAQs will be posted in the agency’s document library, available at http://www.sos.state.tx.us/texreg/index.shtml.

If a member of the Board participates in a meeting by videoconference call is the member 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 § 551.127 (a-2).

May a member of the public testify at a meeting by videoconference call even when the entire Governing Body 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. § 551.127(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. § 551.129 (authorizing a governmental body to use a telephone conference call, videoconference call, or communications over the Internet to conduct certain consultations).

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. § 551.001(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 Board hold a meeting by telephone conference?

Like most governmental bodies, a School Board may hold a meeting by telephone conference call only if both (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. § 551.125(a); see also Tex. Att’y Gen. Op. Nos. GA-0908 (2012), JC-352 (2001).

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[1] This blog was borrowed from content released by the Texas Municipal League and other sources including Texas Association of School Boards, Texas Legislative Counsel, but has been customized for charter schools and school districts.  The Firm makes no claim to ownership over this content and it is provided purely for educational purposes.