The open meetings law regulates how meetings must be carried out to ensure they meet the purpose of the law, including when members of a body can participate electronically, such as by telephone, videoconference or other web-based media.
Lawmakers passed the first statute allowing members of governing bodies to participate electronically in a meeting in 1990. This statute, T.C.A. § 8-44-108, only applied to “boards, agencies and commissions of state government.”
It set certain ground rules, allowing electronic participation only if the governing body makes a “determination that the matters to be considered by the body at that meeting require timely action by the body, that physical presence by all members is not possible within the period of time requiring action, and that participation by some members by electronic or other means of communication is therefore necessary.”
The idea was that state boards and commissions were comprised of members throughout the state. Assembling together physically was sometimes not practical, especially when urgent matters arose. This part of the original statute has slowly been eroded over the years and it is now routine for some state boards to assume they can meet electronically instead of in person simply for convenience.
On the flip side, no convenience provisions have been added for the public. For example, nothing requires a governing body using this part of the law to allow citizens to remotely view the public meeting or remotely participate in the public comment. The only requirement is that governing bodies provide a physical place to allow the public to view or listen to the meeting.
Physical quorum requirement added in 1999, but with loophole
The first major change to the electronic participation statute was in 1999 when lawmakers enacted a physical quorum requirement for electronic participation in meetings but at the same time gave state boards and commissions a way to meet electronically without a physical quorum by documenting a necessity in their minutes. The necessity had to include a recitation of the facts and circumstances and had to be filed with the Secretary of State.
Necessity, as it remains defined in the statute, “means that the matters to be considered by the governing body at that meeting require timely action by the body, that physical presence by a quorum of the members is not practical within the period of time requiring action, and that participation by a quorum of the members by electronic or other means of communication is necessary.”
The new law said that the public must be able to hear members participating by phone or other electronic means. “Each part of a meeting required to be open shall be audible to the public at the location specified in the notice of the meeting…” And it required any vote taken had to be by roll call.
Lawmakers appeared to recognize how participation without being physically present could create problems so they set limits.
In 2005, the law was amended to accommodate the City of Belle Meade, applying it narrowly to a municipality with a city commission of three members and a population more than 2,500. (Belle Meade no longer meets the definition; it has five members now.)
In 2012, higher education boards get bigger loophole
Some governing bodies itched for more. And the law was tweaked again in 2012 to allow three state higher education boards to meet electronically without a physical quorum and without having to document necessity.
This applied to the Tennessee Board of Regents, the Board of Trustees of the University of Tennessee and the Tennessee Higher Education Commission. It basically meant those three state boards could meet electronically for whatever reason and not have a physical quorum. Essentially, these bodies would never have to meet in person under the exception.
Local school boards members win exception to in-person attendance
Also in 2012, lawmakers passed a bill to allow local school boards to meet electronically, found at T.C.A. § 49-2-203 (c )(1)(A). It contained limits, sticking with the idea that local governing bodies did not have the same challenges of physical quorum as state bodies. For local school boards, a quorum of members must be physically present at the location of the meeting. A member is allowed to participate electronically no more than two times a year and only if they are out of the county for work, family emergency or military service. (Military service is exempt from the two-meeting limit.) The off-site member is required to be visually identifiable by the board chair. And, board member using the out-of-county work exception must give at least five (5) days notice prior to the scheduled board meeting.
The law also instructs school boards wishing to allow electronic participation to “develop a policy for conducting such meetings.”
Emergency communication districts, charter school boards added
In 2017, the law was expanded to allow emergency communication district boards to meet electronically. A physical quorum is not required, meaning these boards can meet essentially all electronically all the time as long as they provide a physical space for the public to come where they can listen in to the meeting.
Boards for charter schools got a more generous exception in 2019 as part of a bill that offered more avenues to start a charter school in Tennessee. The new statute allows board members of charter schools to meet by teleconference or videoconference without a physical quorum. This exception is at T.C.A. § 49-13-111(h). The reason given was that some national charter school boards are governed by members from outside the state.
State university boards get more exceptions in 2020
In 2020, the Generally Assembly passed a bill to allow the local governing bodies of six state universities to meet electronically without ever having to meet in person, similar to the UT Board of Trustees. This applies to governing bodies of Austin Peay State University, East Tennessee State University, University of Memphis, Middle Tennessee State University, Tennessee State University and Tennessee Technological University.
Provision governing electronic participation — TCA § 8-44-108
Following is the main Open Meetings statute governing electronic meetings.
(a) As used in this section, unless the context otherwise requires:(1) “Governing body” refers to boards, agencies and commissions of state government, including state debt issuers as defined in this section and municipal governing bodies. For the purpose of this section only, “municipal governing bodies” means only those municipal governing bodies organized under title 6, chapter 18, and having a city commission of three (3) members, and having a population of more than two thousand five hundred (2,500), according to the 2000 federal census or any subsequent federal census;
(2) “Meeting” has the same definition as defined in § 8-44-102;
(3) “Necessity” means that the matters to be considered by the governing body at that meeting require timely action by the body, that physical presence by a quorum of the members is not practical within the period of time requiring action, and that participation by a quorum of the members by electronic or other means of communication is necessary; and
(4) “State debt issuers” means the Tennessee state funding board, Tennessee local development authority, Tennessee housing development agency, and Tennessee state school bond authority, and any of their committees.
(b)(1) A governing body may, but is not required to, allow participation by electronic or other means of communication for the benefit of the public and the governing body in connection with any meeting authorized by law; provided, that a physical quorum is present at the location specified in the notice of the meeting as the location of the meeting.
(2) If a physical quorum is not present at the location of a meeting of a governing body, then in order for a quorum of members to participate by electronic or other means of communication, the governing body must make a determination that a necessity exists. Such determination, and a recitation of the facts and circumstances on which it was based, must be included in the minutes of the meeting.
(3) If a physical quorum is not present at the location of a meeting of a governing body other than a state debt issuer, the governing body other than a state debt issuer must file such determination of necessity, including the recitation of the facts and circumstances on which it was based, with the office of secretary of state no later than two (2) working days after the meeting. The secretary of state shall report, no less than annually, to the general assembly as to the filings of the determinations of necessity. This subdivision (b)(3) shall not apply to the board of regents, to the board of trustees of the University of Tennessee or to the Tennessee higher education commission.
(4) Nothing in this section shall prohibit a governing body from complying with § 8-44-109.
(c)(1) Any meeting held pursuant to the terms of this section shall comply with the requirements of the Open Meetings Law, codified in this part, and shall not circumvent the spirit or requirements of that law.
(2) Notices required by the Open Meetings Law, or any other notice required by law, shall state that the meeting will be conducted permitting participation by electronic or other means of communication.
(3) Each part of a meeting required to be open to the public shall 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. Any member participating in such fashion shall identify the persons present in the location from which the member is participating.
(4) Any member of a governing body not physically present at a meeting shall be provided, before the meeting, with any documents that will be discussed at the meeting, with substantially the same content as those documents actually presented.
(5) All votes taken during a meeting held pursuant to the terms of this section shall be by roll call vote.
(6) A member participating in a meeting by this means is deemed to be present in person at the meeting for purposes of voting, but not for purposes of determining per diem eligibility. However, a member may be reimbursed expenses of such electronic communication or other means of participation.
(d) Notwithstanding this chapter to the contrary, members of an emergency communications district board of directors may participate in meetings by any electronic means approved by such board. A board member who participates in a meeting electronically under this subsection (d) is present for purposes of creating a quorum and voting on matters presented to the board for consideration during the meeting to the same extent as a board member who is physically present at the meeting. Subdivisions (c)(1), (2), and (3) shall apply to meetings held pursuant to this subsection (d).
T.C.A. §8-44-108