The Open Meetings statute allows members of certain types of governing bodies, such as state boards and commissions whose members live across the state, to participate in meetings electronically under certain circumstances.
Local governing bodies, however, are largely prohibited from allowing their county commissioners, aldermen, city councilmen and so forth to participate and vote in meetings by phone or video conference. The one big exception, enacted in 2012, is for members of local school boards under specific conditions.
During the COVID-19 pandemic in 2020 and 2021, Gov. Bill Lee temporarily allowed all governing bodies to meet electronically via video conference or phone to reduce physical gatherings and the spread of the deadly virus. The governor’s executive order required that the public have remote access to the meetings through a live video stream or audio stream. The order expired on April 28, 2021, and efforts to create a new law in 2021 to allow local governing bodies to continue to meet electronically failed.
The primary statute controlling electronic participation in meetings by members of governing bodies is T.C.A.§ 8-44-108, which largely applies to only state boards and commissions.
One key requirement in this statute is that the governing body must have a quorum in a physical place. In other words, a member or two might connect by video conference, but most of the governing body has to be physically present in a place where the public can attend.
However, state boards and commissions can avoid the physical quorum by making a determination of “necessity.” “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…” In those cases, the governing body must make accommodations at a physical place where the public can attend and listen in to the phone call or video conference of the governing body.
The governing bodies with the most flexibility are boards of state universities, which don’t have to make a determination of necessity to meet without a quorum in a physical place. Still, even without a physical quorum in a physical place, a physical place has to be provided where the public can attend and hear or see the board members who are participating electronically.
The only type of local governing bodies that may conduct meetings with electronic participation by its members are school boards [(T.C.A. § 49-2-203(c)] and emergency communication district boards [T.C.A. 8-44-108 (d)].
For a school board member to participate electronically, a quorum of the governing body must be present at the physical location of the meeting and the board member attending electronically must be out of the county for work, experiencing a family emergency or serving in the military. The off-site member is required to be visually identifiable by the board chair. And board members taking advantage of this exception for out-of-the-county work must give at least five (5) days notice prior to the scheduled board meeting. In addition, each board member may only participate electronically in a meeting twice a year.
Members of emergency communication district boards, which are locally governed, are allowed by statute to participate electronically in meetings. Unlike state boards and commissions, they do not have to file a statement of necessity with the Secretary of State’s office and conduct roll call votes. Also, their members are allowed to receive their regular per diem payment when they attend electronically.
You can learn more detail about electronic participation in meetings in our second FAQ on this issue that outlines the historical progression of electronic participation in meetings from 1990 to 2020. It includes more detail and a copy of the current statutes.
