***IMPORTANT UPDATE***
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 within a reasonable distance of the charter school’s
geographic territory 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).
Are there any size restrictions on charter schools that may
utilize videoconferencing for Board meetings?
No. According to the Attorney General,
videoconferencing is not limited to charter schools with geographic service
areas that extend into three or more counties. Thus, all charter schools may
use videoconferencing for their Board meetings, provided they comply with all
other requirements.
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. Written guidance from DIR
regarding which Internet-based communication technologies meet those standards
is available at http://www2.dir.state.tx.us.
May a member of the Board participate in a meeting by
videoconference from a physical location outside the charter school’s
geographic territory, including out of state?
Yes. The Attorney General has clearly
stated that so long as the presiding member of the Board is present at a
physical location of the meeting open to the public in or within a reasonable
distance of the charter school’s geographic territory, other members of the
Board may participate in a videoconference call meeting from remote locations
outside the geographic service area, including outside of the state.
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).
[1]
This Handout 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.
