                                     QBffice      of tfp      ~ttornep          @eneral
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DAN MORALES
 ATTORNEY
      GENERAL                                           August 5, 1998


   Ms. Carolyn Purcell                                           Opinion No. DM-480
   Executive Director
   Department of Information Resources                           Re: Whether, under Government Code section
   P.O. Box 13564                                                551.126, a governmental body must recess or
   Austin, Texas 7871 l-3564                                     adjourn a meeting held by videoconference call if
                                                                 technical difficulties  render portions of the
                                                                 meeting inaccessible to the public at a remote
                                                                 location, and related question  (RQ-1098)

   Dear Ms. Purcell:

            Under Government Code section 55 1.126(e),’ if a governmental body chooses to conduct a
   meeting by videoconference call, each portion of the open meeting must be visible and audible to
   the public at each location listed in the meeting notice. Additionally, each location listed in the
   meeting notice must, in accordance with section 551.126(g), have two-way communication with
   each other location during the entire meeting. You ask whether a governmental body must recess
   or adjourn its meeting if technical difficulties render portions of the meeting inaccessible to the
   public at a remote location. We conclude that it must. You also ask whether the governmental body
   may avoid having to recess or adjourn the meeting in the event oftechnical difficulties by specifying
   in its meeting notice that, if technical difficulties occur, the quorum will continue to conduct its
   business. We conclude it may not.

           As you point out, in 1997 the legislature adopted Government Code section 551.126 to
   permit a governmental body to hold ameeting viavideoconference      call.z The legislature’s effort was
   motivated, at least in part, by a desire to overcome a 1993 opinion of this office in which we stated
   that a governmental body could not conduct a meeting by videoconference call in the absence of




             ‘The Seventy-fifth Legislature adopted two versions of Government Code section 551.126. The first, Act
   ofMay 23,1997,75th      Leg., R.S., ch. 944,s 1, 1997 Tex. Gen. Laws 2952,2952, permits the Texas Higher Education
   Coordinating    Board to hold an open meeting by telephone conference call or videoconference        call in certain
   circumstances.   The second, Act of May 30, 1997,7Sth Leg., RX, ch. 1038,§ 1, 1997 Tex. Gen. Laws 3896,3896-97,
   is the provision about which you ask. Throughout this opinion, we will use the term “section 551.126” to refer only
   to the provision about which you ask.

             ‘See Senate Corn.     on State Affairs, Bill Analysis, C.S.S.B. 839,75th Leg., R.S. (1997); cf: House Comm. on
   State Affairs, Bill Analysis,   H.B. 1772, 75th Leg., R.S. (1997) (analyzing bill that was substantially identical to S.B.
   839 as finally passed).
Ms. Carolyn Purcell      - Page 2                    (DM-480)




express statutory authorization to the contrary.’ Legislators apparently believed that, using existing
technology, persons interested and participants in a public meeting can observe the demeanor of all
participants.4

        In our view, the language of the statute makes abundantly clear that the legislature intended
the open portions of a meeting by videoconference call to be visible and audible to the public at
every location the governmental body listed in its notice:

                 (a) Except as otherwise provided by this section, this chapter does not
             prohibit a governmental body from holding an open or closed meeting by
             videoconference call.

                 (b) A meeting may be held by videoconference call only if a quorum of
             the governmental body is physically present at one location of the meeting.

                  (c) A meeting held by videoconference   call is subject to the notice
              requirements   applicable to other meetings in addition to the notice
              requirements prescribed by this section.

                  (d) The notice of a meeting to be held by videoconference         call must
              specify as a location of the meeting the location where a quorum of the
              governmental body will be physically present and specify the intent to have
              a quorum present at that location. In addition, the notice of the meeting must
              specify as a location of the meeting each other location where a member of
              the governmental body who will participate in the meeting will be physically
              present during the meeting. Each of the locations shall be open to the public
              during the open portions of the meeting.

                  (e) Each portion of a meeting held by videoconference          call that is
              required to be open to the public shall be visible and audible to the public at
              each location specified under Subsection (d).

                  (f) The governmental body shall make at least an audio recording of the
              meeting. The recording shall be made available to the public.

                   (g) Each location specified under Subsection (d) shall have two-way
              communication with each other location during the entire meeting. Each
              participant in the videoconference    call, while speaking, shall be clearly
              visible and audible to each other participant and, during the open portion of


          ‘See House Comm. on State Affairs, Bill Analysis,   H.B. 1772, 75th Leg., R.S. (1997); Attorney   General
Opinion   DM-207 (1993) at 3.

          ‘.!k House Comm. on State Affairs, Bill Analysis, H.B. 1772, 75th Leg., R.S. (1997); Attorney     General
Opinion   DM-207 (1993) at 2-3 (citing Attorney General Opinion JM-584 (1986) at 4,6).


                                                     p.   2722
Ms. Carolyn Purcell        - Page 3                     (DM-480)




               the meeting, to the members of the public in attendance at a location of the
               meeting.

                   (h) The Department of Information Resources by rule shall specify
               minimum standards for audio and video signals at a meeting held by
               videoconference call. The quality of the audio and video signals perceptible
               at each location of the meeting must meet or exceed those standards.

                    (i) The quality ofthe audio and video signals perceptible by the members
               of the public at each location of the meeting must:

                        (1) meet or exceed the quality of the audio and video signals
               perceptible by the members of the governmental body participating in the
               meeting; and

                        (2) be of sufficient quality so that members of the public at each
               location of the meeting can observe the demeanor and hear the voice of each
               participant in the open portion of the meeting.

                    (j) Without regard to whether a member of the governmental body is
               participating in a meeting from a remote location by videoconference call, a
               governmental body may allow a member of the public to testify at a meeting
               from a remote location by videoconference call. [Emphasis added.]

         Subsections (e), (g), (h), and (i) in particular compel us to conclude, in answer to your first
question, that if, due to technical difficulties, members of the public gathered at a location listed in
the subsection (d) notice cannot see or hear the open meeting, the meeting must be recessed or
adjourned.     As we read subsection (g), for example, if one listed location loses two-way
communication with another listed location during any part of the open meeting, then the meeting
will not satisfy the statute. Likewise, under subsections (h) and (i), if audio or video quality at any
location listed in the notice fails to meet the statutory and regulatory standards,5 members of the
public at each location will be unable to observe the voice and demeanor of each participant in the
open meeting. Consequently, the meeting cannot continue.6

         We conclude, in answer to your second question, that a governmental body may not avoid
having to recess or adjourn the meeting in the event of technical difficulties by stating in its notice
that the meeting will continue in such an event. You suggest that proper notice to the public that the
quorum of the governmental body will continue its meeting despite the technical diff%ulties will


            5See Tex. Dep’t of Information Resources,   22 Tex. Reg. 10870 (1997), adopted 23 Tex. Reg. 1302 (1998)
(codified    at 1 Tex. Admin. Code $201.16).

          ‘But see Rivera Y. City ofLaredo, 948 S.W.2d 787,793 (Tex. App.--San Antonio 1997, wit denied) (tindiig
that city violated Open Meetings Act by continuing recessed meeting hvo days after meeting convened without posting
notice of continuation of meeting).


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Ms. Carolyn Purcell      - Page 4                     (DM-480)




avoid having the members of the governmental body, who may have gathered at one location from
far-flung points of the state and who may be uncompensated, wasting time and money while the
difficulties are resolved.7 While we understand your concerns, in our opinion Government Code
section 55 1.126(d), (e) contemplates that a member of the public may choose whether to attend a
governmental body’s meeting at the location where the quorum is present or at a remote location.
An agency that continues a meeting at the location where the quorum is present in spite of technical
difficulties that make seeing or hearing the meeting impossible at a remote location violates
subsection (e) by depriving citizens at the remote location of their right to see and hear the meeting.
The notice you suggest in no way remedies this problem.

                                              SUMMARY

                 Under Government Code section 55 1.126, a governmental body must
             recess or adjourn an open meeting conducted via videoconference        call if
             technical difficulties cause the quality of the audio or video signal to fall
             below the standards set by the Department of Information Resources. The
             governmental body cannot avoid this result by notifying the public that,
             should technical difficulties occur, the quorum of the governmental body will
             continue its open meeting.




                                                      DAN     MORALES
                                                      Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K Oltrogge
Assistant Attorney General




           ‘You articulate what you suggest to be sufficient notice: “If technical diffkxlties should cause the remote
location(s) to become no longer open to the public during any portion of the meeting that is required to be open to the
public, the remotely[]located  member of the governing board will be deemed to have left the meeting, and the meeting
will continue at the location where the quorum is physically present.”


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