Several bills seek to waive electronic participation rules for governing bodies so that public officials can attend more freely by phone instead of in person

Permission for governing bodies to meet electronically during the COVID-19 epidemic has whet the appetite of some government officials to change the law permanently.

Lawmakers have filed several bills that would give various types of governing bodies more exceptions to meet electronically — either allowing an entire governing body to meet by conference call or video conference or allowing certain members of a governing body to patch into a physical meeting by phone or video.

Only one of the bills requires that meetings held electronically offer equivalent electronic access to the public, but it’s still early in the session and amendments could alter that.

The most wide-reaching legislation is being proposed by two Knoxville lawmakers — Sen. Richard Briggs and Rep. Dave Wright. The bills as filed would apply to county commissions in the state.

The caption on the bill, however, is broad enough that it could be expanded to cover all types of local governing bodies, such as boards of aldermen, city commissions, metro councils, public utility boards and other types of boards governing special districts.

Briggs is the new chairman of the Senate State and Local Committee. Wright is vice-chair of the Local Government Committee. Both men’s political careers have included seats on the Knox County Commission, so they are well aware of how county commissions operate.

Bill would allow county commissioners to attend meetings by phone

The language in the county commission bill (SB 301 and HB327) is almost identical to an existing statute that allows school board members to participate in a meeting electronically as long as a quorum of the board is meeting at a physical location open to the public. The school board exemption is in T.C.A. § 49-2-203 (c )(1)(A).

Under the proposal as filed, county commissions, like school boards, would be exempt from the current rules in the Open Meetings Act governing electronic participation (found in T.C.A. § 8-44-108) and instead be held to a different set of rules.

Those new rules would allow a county commissioner to participate electronically if:

  • The commissioner is required to be out of the county for the commissioner’s work;
  • The commissioner is dealing with a family or medical emergency as determined by the county legislative body; or
  • The commissioner has been called into military service.

The rules would limit a commissioner from electronic participating in commission meetings to twice a year, except for commissioners who are absent because of military service, who would have no limits.

No requirements accommodating public

Neither the existing school board statute nor the proposed statute for county commissions requires specific accommodations for the public, such as making sure that the public can see and hear the person patching in electronically.

The school board statute requires only that the person participating electronically be “visually identified by the chair.”

This is probably the weakest part of the bill as it now stands — and a gap in the school board statute.

Briggs and Wright, both of whom I have communicated with, have invited suggestions to strengthen requirements so that the public’s ability to view and hear public proceedings are not compromised.

Of note is that the Open Meetings Act section that provides for electronic participation in meetings has safeguards that address the type of difficulties and questions that arise with electronic participation. Unfortunately, these safeguards do not apply to school boards, which got exempted from them in 2012; nor would they apply to county commissions as that legislation is currently drafted.

Those requirements, found in T.C.A. § 8-44-108(c) include:

  • Each part of the meeting required to be open must be audible to the public at the location specified in the notice of the meeting as the location of the meeting.
  • Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting.
  • All votes taking during a meeting where members are participating electronically must be taken by roll call vote.
  • Members participating electronically are deemed present for the purposes of voting, but not for the purposes of determining per diem eligibility.

The Tennessee Coalition for Open Government would like to see a requirement that the public be able to view and clearly hear a member participating electronically. During the pandemic, the most common complaints about electronic meetings have arisen when members participated in a meeting by phone, not by video. Citizens complained they had a hard time knowing who was speaking and how members voted.

The governor’s executive order allowing electronic meetings during the pandemic state of emergency requires that votes be by roll call and people speaking must identify themselves.

Also, the advantages enjoyed by the public during the pandemic to attend, view and even participate in public meetings remotely are not a major part of any bills filed so far. In other words, the bills, with the exception of one, are focused on the convenience of the electronic participation for government officials, not the public.

Other bills expanding electronic participation

Other bills that seek to increase the ability of governing bodies to meet electronically — many of them without some or all of the rules for electronic participation provided in the Open Meetings Act — are aimed at:

The bill allowing electronic meetings for the state’s human resource agency boards is the only one that includes language about public participation. It says electronic meetings can be conducted only if an opportunity for public participation is provided.

Another legislative proposal, HB1029 / SB971, is a caption bill but is expected to take a comprehensive look at electronic participation in meetings and perhaps create standards that could be applicable across the board. Those bills are being sponsored by state Rep. Jerome Moon, R-Maryville, and state Sen. Shane Reeves, R-Murfreesboro. This bill would open up the section in the Open Meetings Act already dedicated to governing electronic participation in meetings.

Help us track legislation

More bills, or amendments to caption bills, may still be filed that create exceptions to the electronic participation rules in the Open Meetings Act.

Since there is no requirement that a proposed exception to the Open Meetings Act make reference to the open meetings law, it could be difficult to identify each piece of legislation that creates an exemption, particularly as amendments are filed. Many lawmakers themselves may be unfamiliar with the details of the OMA’s rules around electronic participation.

If you would like to help read amendments to bills this session and keep a watchful eye out for potential new exemptions to the Open Meetings Act, please contact us through our website through our volunteer form.