December 11, 1986

Mr. Karl.E:Bishop ExecutiveDirector Texas Board of Licensure far Nursing HomeAdministrators 4800N. Lamar Austin, Texas 78756

Dear Mr. Bishop: Opinion No. JM-584

Re: Whether the Texas Board of Licensure for Nursing HOl!X Administratorsmay holdmeetings by teleconferencecall

You ask whether the Texas Board ‘ofLicensure for Nursing Home Administrators may occasionally meet and voteson cases by teleconference call. You in essence ask whether a meeting by teleconference callwould comply with the Texas Open Meetings Act, article 6252-17, V.T.C.S.

The OpenMeetings Act provides inpart:

Section 1. As used in thisAct:
(a) " Meeting' means any deliberationbetween a quorum of memberr;of a governmentalbody at which any public business or public policy over which the governmental body has supervision or control is discussedor 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',arsof the governmentalbody in numbers of a quorum or more for social functions unrelated to the:public business which is conducted 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 respectivebody.

. . . .
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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executivemeeting or session of any governmental body for any of thepurposes for which closed or executive meetin(Zsor sessions are hereinafter authorized shall'.beheld unless the governmental body has first been convened in open meeting or session for which notice has been given as hereinafterproviiad and duringwhich openmeeting
or session the presiding officer hai publicl; announced that a closed or executive meeting or sessionwill be held and identified the sectionor sectionsunder thisAct authorizing theholding of such closed or executive session.

. . . .
Sec. 3A. (a'lWritten notice of the date, .hour,place, and subjectof eachmeetingheld 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 subjectwhich 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;equent meeting of such governmental body for which notice has been provided in compliancewith thisAct.

Sec. 4. (a) Any member of a governing body who wilfully calls or aids in calling or organizing a specj_al or calledmeeting 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 participates in a regula:?,special, or calledmeeting or session which 11%closed to the public where a closed meeting 1;~ not permitted by the provisions of thisAct.

. . . (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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deliberations in contravention of this Act shall be guilty of 6. misdemeanor.

. . . (Emphasis added).

V.T.C.S. art. 6252-17.

The Open MeetingsAct tioes not expresslyaddress the conduct of a meeting by telephone conference call. You ask only about occasional teleconference call meetini;sby 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 aremindful that its intended purpose is & open'governmenial decision-making to the public. See Cox Enterprises, Inc. v. Board of Trustees of the Austin Independ= SchoolDistrict, 706 S.W.2d?#56 (Tex. 1986).

The act defines a "meeting"as "any deliberationbetween a quorum of members of a government;Jbody" at which certainmatters are discussed or atwhich any formsI action is taken. V.T.C.S. art. 6252-17, §l(a). Deliberations by tcilephone call would fit this definition; a Texas courthas in fact ind,icated thatmembers of a governmentalbody would.violate the OpenMeetingsAct by holding secret deliberationsby telephone. SeeBitt v. Mab,;L,687 S.W.2d 791 (Tex.App. - SanAntonio 1985,no wriq Elizondov. '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 .publicpolicy). 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 Yellowstone, 606 P.2d 1069 (Mont. 1980); State v. Vermont Emergency Board, 394 A.2d 1360 (Vt. 1978:l (cases discussing whether meeting by telephonewas permittedby openmeeting laws in other states).

The determination that deliberations by telephone could fall within the definition of %?etiag" doesnot end our inquiry. Meetings subject to the actmust "be open to the public," andmust complywith statutory requirements for notice and procedure. Some of the procedural provisions indicate that the legislatureassumed thatmembers of
a governmentalbody would appear personally at the meeting. Section l(a) provides that members of a governmentalbody are not prohibited from gathering for social occasions or attendance at national conventions and workshops, gathe,ringsthat necessarily involve personal attendance. Section 3A exempts from thenotice requirementof article 6252-17, V.T.C.S., limited answers to "an inquiry made at such meeting

. . . made by a mem',er of the generalpublic orby a member of the governmentalbody." V.T.C.S. art. 6252-17. §3A. The public has
no right under the act l:ospeak at meetings; that is a matter controlled by the discreti,onof the governmental body or, in some cases, by a particular statute. Attorney General Opinion H-188

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(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:Lon that boardmemberswill 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 MeetingsAct.

The Texas Supreme Court has determined that an open meeting may not be convenedwithout a qnorum present in themeeting room, and has stated as follows:

The newspaper argues that the Act clearly contemplates that a quorum be present at the meeting place, that section 2(a) requires an openmeeting 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 appearantes. only two members may have.been present. The public*is entitled to know which membeis are present for the cs.osedsession and whether there is a quorum. We hold that the SchoolBoard failed to comply with the Act's requirements. (Emphasis added);

Cox Enterprises, Inc. v. BaElrdof 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 telephonemeetings for governmental bodies can be contrasted with its express authorization of such meetings for the directors, shareholders,and committeesof a corporation. Bus. Corp. Act art. !,.lO(C). An examination of this legislative authorization and the underlying legislativepolicy leads us to believe that telephone conference calls do not comply with the Texas Open Meetings Act and that the legislaturewould expressly authorize governmentalbodies tomeet by telephone conference if it wished them to have thatpower.
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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unless otherwise-restricted by the articles of incorporationor by-laws, shareholders,members of the board of directors, or members of any committee designatei. by such board, may participate in and hold a meeting of such shareholders,board,
or committee by neans of conference telephone or similar communicationsequipmentbymeans ofwhich all persons partj.cipatingin the meeting can hear each other, and participation in a meeting pursuant to this Section shall constitutepresence in person at suc'z meeting, 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. (Emphasisadded),

Bus. Corp.Act art. 9.10(C). The authorizationfor telephonemeetings
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 telephone 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 CorporationAct, which also authorizesmeetings 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 interchangethat is possiblewhen directorsare physically pr'esentin the same room, but the authors of the model act concluded i:hatmodem technology could provide this advantage even though the members of the board are physically dispersed.

Article 9.10(C) of th,eTexas Business Corporation Act allows conference calls "unless cltherwiserestricted by the articles of incorporation or by-laws.

. . ." Bus. Corp. Act art. 9.10(C); see - alsoModel Bus. Corp.Act Ann. 88.20(b).

The corporation itself determines whether conference calls are permitted. Meetings of shareholdersand directorsare 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 corporation need not consider any public interestwhen 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 interestsof an audience.

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In contrast, the Open 'MeetingsAct is intended to further the public interest in access to the decisionmaking processes of governmental bodies. See Cox Enterprises, Inc.v. Board of Trustees of the Austin Independant School '2 , s; Toyah Independent School District v. Pecos-Barstow I?- IdentSchool District, 466 S.W.2d 377 (Tex. Civ. Ann. - San Antonio 1971, n.owrit): Acts 1967, 60th Leg., ch. 271, S?,'& 597 (emergencyclause of Open-MeetingsAct). 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 Involvingparticipation in ameeting by telephoneconferencecall, the SupremeCourt ofVermont stated as follows:

We are directed to no authority, by either party, dealing with the subject of attendance at
a 'meeting' thror.ghthe 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 suchparticipatior~ 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 ameeting, the goal of the legislationhere under consideration, could ever be achieved, even with the advance notice contemplatedby 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. (Emphasisadded).

Statev. Vermont EmergencyBoard, 394A.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 OpenMeetingsAct. Mlzrtbers of thepublicwho can onlyhear what
aboard member sayswill no': know whether the silentboardmembers are paying attention.

1. The Vermont Open Yeetings Law does not expressly authorize members of the public to speak out at publicmeetings. SeeVt. 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 "otheractiveparticipants in themeeting." Id. 6312(b)(l)(A). -

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A meeting conducted br teleconference call among geographically dispersedboardmembers is 'oat"open to thepublic" as requiredby the Open Meetings Act. It is :Eorthe legislature to determine whether governmental bodies should have authority to meet on occasion by teleconference call. It 113for the legislature to establish limitations on and guidance for such meetings. Until the legislaturehas granted it that power, the Texas Board of Licensure for Nursing Home Administratorsmay not meet and vote on casesby telephone conference call.

SUMMARY

In the absence #ofspec.ific legislativeauthorisation, a governmernal body that meets by telephone conference call wi:L:L not comply with the Texas Open MeetingsAct, articl~e 6252-17,V.T.C.S.

JACKHIGHTOWER JIM MATTOX Attorney General of Texas

FirstAssistantAttorney General

MARY KELLER ExecutiveAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby SusanL. Garrison AssistantAttorney General

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