                             December 11, 1986




Mr. Karl.E:Bishop                         Opinion No.   JM-584
Executive Director
Texas Board of Licensure far              Re:   Whether the Texas Board of
   Nursing Home Administrators            Licensure   for   Nursing   HOl!X
4800 N. Lamar                             Administrators may hold meetings
Austin, Texas   78756                     by teleconference call

Dear Mr. Bishop:

     You ask whether the Texas Board ‘of Licensure for Nursing Home
Administrators may occasionally meet and votes on cases by telecon-
ference call. You in essence ask whether a meeting by teleconference
call would comply with the Texas Open Meetings Act, article 6252-17,
V.T.C.S.

     The Open Meetings Act provides in part:

             Section 1.       As used in this Act:

             (a) "Meeting' means any deliberation between a
          quorum of memberr;of a governmental body at which
          any public business or public policy over which
          the governmental body has supervision or control
          is discussed or considered, or at which any formal
          action is taken. It shall not be construed that
          the intent of this definition is to prohibit the
          gathering of mem',ars of the governmental body in
          numbers of a quorum or more for social functions
          unrelated to the: public business which is con-
          ducted by the hollyor for attendance of regional,
          state, or national conventions or workshops as
          long as no forma:.action is taken and there is no
          deliberation of public business which will appear
          on the agenda of the respective body.

             .   .   .   .

             Sec. 2. (a) Bxcept as otherwise provided in
          this Act or     rpecifically permitted in the
          Constitution, every regular, special, or called
          meeting or sass&     of every governmental body
          shall be open t: the public; and no closed or




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Mr. Karl E. Bishop - Page 2   (JM-584)




         executive meeting or session of any governmental
         body for any of the purposes for which closed or
         executive meetin(Zs or sessions are hereinafter
         authorized shall'.be held unless the governmental
         body has first been convened in open meeting or
         session for which notice has       been given as
         hereinafter proviiad and during which open meeting
         or session the presiding officer hai publicl;
         announced that a closed or executive meeting or
         session will be held and identified the section or
         sections under this Act authorizing the holding of
         such closed or executive session.

             .   .   .   .

             Sec. 3A.    (a'l Written notice of the date,
         .hour, place, and subject of each meeting held by a
          governmental body shall be given before the
          meeting as prescribed by this section, and any
          action taken by 3 governmental body at a meeting
          on a subject which was not stated on the agenda in
          the notice nested for such meetina is voidable.




         is made by a member of the general public or~by a
         member of the gov%mental body. Any deliberation,
         discussion, or decision with respect to the
         subject about which inquiry was made shall be
         limited to a proFosa1 to place such subject on the
         agenda for a suhs;equentmeeting of such govern-
         mental body for which notice has been provided in
         compliance with this Act.

            Sec. 4.   (a) Any member of a governing body
         who wilfully calls or aids in calling or
         organizing a specj_alor called meeting or session
         which is closed ‘to the public, or who wilfully
         closes or aids Ln closing a regular meeting or
         session to the lntblic, or who wilfully partici-
         pates in a regula:?,special, or called meeting or
         session which 11% closed to the public where a
         closed meeting 1;~not permitted by the provisions
         of this Act. . . .

            (b) Any memhcr or group of members of a
         governing body who conspire to circumvent the
         provisions of thLs Act by meeting in numbers less
         than a quorum for the purpose of secret



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Mr. Karl E. Bishop - Page 3    (J-M-584)




          deliberations in contravention of this Act shall
          be guilty of 6. misdemeanor. . . .      (Emphasis
          added).

V.T.C.S. art. 6252-17.

     The Open Meetings Act tioesnot expressly address the conduct of a
meeting by telephone conference call. You ask only about occasional
teleconference call meetini;s by the Board of Licensure for Nursing
Home Administrators, but cur answer cannot be so limited and will
apply to all meetings of a:.1governmental bodies subject to the act.
In construinr!the Ouen Meetings Act, we are mindful that its intended
purpose is & open'governmenial decision-making to the public. See
Cox Enterprises, Inc. v. Board of Trustees of the Austin Independ=
School District, 706 S.W.2d?#56 (Tex. 1986).

      The act defines a "meeting" as "any deliberation between a quorum
 of members of a government;J body" at which certain matters are dis-
 cussed or at which any formsI action is taken. V.T.C.S. art. 6252-17,
 §l(a). Deliberations by tcilephonecall would fit this definition; a
 Texas court has in fact ind,icatedthat members of a governmental body
would.violate the Open Meetings Act by holding secret deliberations by
 telephone. See Bitt v. Mab,;L,687 S.W.2d 791 (Tex. App. - San Antonio
 1985, no wriq   Elizondo v. 'Williams,643 S.W.2d 765 (Tex. App. - San
 Antonio 1982, no writ) (schGo1 board members enjoined from conducting
 telephone conferences to discuss public business or .public policy).
 See also Stockton Newspapers, Inc. v. Members of the Redevelopment
.Agency of the City of Stcce,       214 Cal. Rptr. 561 (Cal. App. 3d
 1985); Minnesota Education Association v. Bennett, 321 N.W.Zd 395
 (Minn. 1982); Board of Trurzees, Huntley Project School District No.
 24, Worden v. Board of Coul":yCommissioners of the County of Yellow-
 stone, 606 P.2d 1069 (Mont. 1980); State v. Vermont Emergency Board,
 394 A.2d 1360 (Vt. 1978:l (cases discussing whether meeting by
 telephone was permitted by open meeting laws in other states).

       The determination that deliberations by telephone could fall
within the definition of %?etiag" does not end our inquiry. Meetings
subject to the act must "be open to the public," and must comply with
statutory requirements for notice and procedure. Some of the proce-
dural provisions indicate that the legislature assumed that members of
a governmental body would appear personally at the meeting. Section
l(a) provides that members of a governmental body are not prohibited
from gathering for social occasions or attendance at national conven-
tions and workshops, gathe,rings that necessarily involve personal
attendance. Section 3A exempts from the notice requirement of article
6252-17, V.T.C.S., limited answers to "an inquiry made at such
meeting   . . . made by a mem',erof the general public or by a member of
the governmental body." V.T.C.S. art. 6252-17. §3A. The public has
no right under the act l:o speak at meetings; that is a matter
controlled by the discreti,on of the governmental body or, in some
cases, by a particular statute. Attorney General Opinion H-188



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Mr. Karl E. Bishop - Page 4 (~~-584)




(1973); see, e.g., V.T.C.S. art. 1269k. §13a(a); Tax Code art. 26.06.
Nonetheless, the section 3A ,procedurefor handling inquiries from the
public rests on the assumpt:Lonthat board members will be able to hear
people attending the meet1r.g. Section 3A also contemplates that the
meeting shall be held in 6. "place" specified in the notice. These
provisions at least suggesl: that the legislature assumed that board
members would be physically present at meetings subject to the Open
Meetings Act.

     The Texas Supreme Court has determined that an open meeting may
not be convened without a qnorum present in the meeting room, and has
stated as follows:

          The newspaper argues that the Act clearly contem-
          plates that a quorum be present at the meeting
          place, that section 2(a) requires an open meeting
          to be convened before the Board may go into
          executive session, and that there is no 'meeting'
          unless a quorum is present and physically able to
          'deliberate.' Tcr:. Rev. Civ. Stat. Ann. art.
          6252-17. 981(a) and (b).

             We agree with the newspaper. By all appear-
          antes. only two members may have. been present.
                                                                         ?
          The public*is entitled to know which membeis are
          present for the cs.osed session and whether there
          is a quorum. We hold that the School Board failed
          to comply with the Act's requirements. (Emphasis
          added);

Cox Enterprises, Inc. v. BaElrd of Trustees of the Austin Independent
School District, 706 S.W.2d at 959. The court did not address the
question of telephone deliocrations, but its language suggests that
the public interest requirss board members to attend meetings in
person.

     The legislature's silence on telephone meetings for governmental
bodies can be contrasted with its express authorization of such
meetings for the directors, shareholders, and committees of a corpora-
tion. Bus. Corp. Act art. !,.lO(C). An examination of this legisla-
tive authorization and the underlying legislative policy leads us to
believe that telephone conference calls do not comply with the Texas
Open Meetings Act and that the legislature would expressly authorize
governmental bodies to meet by telephone conference if it wished them
to have that power.

     Article 9.10 of the Texas Business Corporation Act states in
part:

             C. Subject to the provisions required or                    ?
          permitted by th:.r;Act for notice of meetings,



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Mr. Karl E. Bishop - Page 5   (JM-584)




         unless otherwise-restricted by the articles of
         incorporation or by-laws, shareholders, members of
         the board of directors, or members of any com-
         mittee designatei.by such board, may participate
         in and hold a meeting of such shareholders, board,
         or committee by neans of conference telephone or
         similar communications equipment by means of which
         all persons partj.cipatingin the meeting can hear
         each other, and participation in a meeting
         pursuant to this Section shall constitute presence
         in person at suc'zmeeting, except where a person
         participates in the meeting for the express
         purpose of objecting to the transaction of any
         business on the ground that the meeting is not
         lawfully called or convened. (Emphasis added),

Bus. Corp. Act art. 9.10(C). The authorization for telephone meetings
was added in 1973. Acts 1973, 63rd Leg., ch. 545 at 1486, 1511. A
&mment to article 9.10(C) states that

          [t]he convenience of meetings by conference tele-
          phone should encourage and. permit more frequent
          and timely meetings and savings of time and
          expenses.

Bus. Corp. Act art. 9.10(C), Comment of Bar Committee -- 1967 to 1973
(Vernon 1980). The commentary to section 8.20(b) of the Model
Business Corporation Act, which also authorizes meetings by telephone,
enlarges on the reasons fcr enacting such a law. The comment notes
that the common law concerning directors' meetings has traditionally
required that the directors attend in .person. Model Bus. Corp. Act
Ann. 58.20(b), Official I:omment (3d ed. 1986). The traditional
meeting provided the opportunity for interchange that is possible when
directors are physically pr'esentin the same room, but the authors of
the model act concluded i:hat modem technology could provide this
advantage even though the members of the board are physically
dispersed.

     Article 9.10(C) of th,e Texas Business Corporation Act allows
conference calls "unless cltherwise restricted by the articles of
incorporation or by-laws. . . ." Bus. Corp. Act art. 9.10(C); -see
also Model Bus. Corp. Act Ann. 88.20(b).

     The corporation itself determines whether conference calls are
permitted. Meetings of shareholders and directors are not open to the
public. See generally Bus. Corp. Act arts. 2.24, 2.25, 2.37 (place
and notice of shareholders' and directors' meetings). Thus, a corpora-
tion need not consider any public interest when it decides to conduct
a meeting by telephone conierence. The policies supporting article
9.10 of the Business Corporation Act accordingly do not address the
interests of an audience.



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Mr. Karl E. Bishop - Page 6   (JM-584)




     In contrast, the Open 'Meetings Act is intended to further the
public interest in access to the decision making processes of govern-
mental bodies. See Cox Enterprises, Inc. v. Board of Trustees of the
Austin Independ ant School '2       , s;      Toyah Independent School
District v. Pecos-Barstow I?-    Ident School District, 466 S.W.2d 377
(Tex. Civ. Ann. - San Antonio 1971, n.o writ): Acts 1967, 60th Leg.,
ch. 271, S?,'& 597 (emergency clause of Open-Meetings Act). Members
of the public have an interest in observing the demeanor as well as
hearing the voices of the participants in an open meeting, and we
believe the Open Meetings Act protects that interest. In a case
Involving participation in a meeting by telephone conference call, the
Supreme Court of Vermont stated as follows:

             We are directed to no authority, by either
          party, dealing with the subject of attendance at
          a 'meeting' thror.gh the medium of a telephone
          conference call.    However useful its role in
          formulating policy, it has serious drawbacks as
          a means  of putting that policy into effect.
          Questions of identity of a claimed participant
          could easily aris;. The personal contact that is
          so often an effecTive ingredient of a meeting is
          absent. Whatever, may be the future status of
          such participatior~ if and when specifically
          authorized, we cannot countenance it now, in.
          the absence of &me     clear provision for it.
          Immediately suggested is the rhetorical question
          of how public parl:i.cipation
                                      in such a meeting, the
          goal of the legislation here under consideration,
          could ever be achieved, even with the advance
          notice contemplated by the statute. Not only the
          'right-to-know' is protected by the statute, but
          also the right to 'bepresent, to be heard, and to
          participate. (Emphasis added).

State v. Vermont Emergency Board,
                            --    394 A.2d 1360 (Vt. 1978).

     The Texas Open Meetings Act does not authorize the public to
participate in meetings b? speaking to the persons attending the
meeting.   The other remarks of the Vermont court are relevant to the
Texas Open Meetings Act. Mlzrtbersof the public who can only hear what
a board member says will no':know whether the silent board members are
paying attention.




     1. The Vermont Open Yeetings Law does not expressly authorize
members of the public to speak out at public meetings. See Vt. Stat.
Ann. title 1, 95311-314. The law does require the minutes of a
meeting to identify all members of the public body present and all
"other active participants in the meeting." -
                                            Id. 6312(b)(l)(A).


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L   Mr. Karl E. Bishop - Page 7   (JM-584)




         A meeting conducted br teleconference call among geographically
    dispersed board members is 'oat"open to the public" as required by the
    Open Meetings Act. It is :Eor the legislature to determine whether
    governmental bodies should have authority to meet on occasion by
    teleconference call. It 113 for the legislature to establish limita-
    tions on and guidance for such meetings. Until the legislature has
    granted it that power, the Texas Board of Licensure for Nursing Home
    Administrators may not meet and vote on cases by telephone conference
    call.

                                  SUMMARY

                 In the absence #ofspec.ificlegislative authorisa-
            tion, a governmernal body that meets     by telephone
            conference call wi:L:Lnot comply with the Texas Open
            Meetings Act, articl~e6252-17, V.T.C.S.




                                              JIM     MATTOX
                                              Attorney General of Texas

    JACK HIGHTOWER
    First Assistant Attorney General

    MARY KELLER
    Executive Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Susan L. Garrison
    Assistant Attorney General




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