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 matters to be considered by the body required timely action and it wasn’t practical to assemble all members of the governing body together in time to make that decision.
The idea was that state boards and commissions were comprised of members throughout the state, and assembling together physically was sometimes not practical, especially when urgent matters arose.
This part of the law was updated again in 1999, adding a formal definition of “necessity” and expectations of a physical quorum. However, at the same time, state boards and commissions were given a way to meet electronically without a physical quorum through a process of documenting the necessity, including the recitation of the facts and circumstances on which it was based, and filing it with the Secretary of State.
Still, the law only applied to state governing bodies. And 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.”
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. (Interestingly, Belle Meade no longer meets the definition; it has five members now.)
In all the updates to the statute, lawmakers recognized how participation without being physically present could create problems so they set limits. The main limit is the physical quorum that would naturally prevent overuse. But the law also makes clear 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…”
Some governing bodies itched for more. And the law was tweaked again in two separate bills in 2012 to allow three state higher education boards to meet electronically, without having to document necessity if they did not have a physical quorum. This applied to the board of regents, the board of trustees of the University of Tennessee or to the Tennessee higher education commission. And 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.
The same year, 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 more 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, the board member 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.”
Charter schools boards got a more generous exception in 2014, allowing its members to meet by teleconference or videoconference without a physical quorum. This exception can now be found at T.C.A. § 49-13-111(i). The reason given was that some national charter school boards are governed by members from outside the state.
Finally, in 2017, the law was expanded to allow emergency communication district boards of directors to meet electronically. They, too, have fewer limits.
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