KBS Reference Desk: Remote Participation in Board Meetings

Q:        One of our board members is currently under quarantine due to his spouse testing positive for COVID-19. Our board meeting is next week, and he would like to participate in the meeting. Can he call in and be put on speakerphone?

 A:        No. Telephone participation at a public meeting is not permitted under the TOMA; however, the Texas Government Code does allow for an absent board member to participate by videoconference, subject to certain technical requirements.

The Texas Government Code, Chapter 551 (referred to as the Texas Open Meetings Act, or TOMA) authorizes a meeting by telephone conference call only in situations where “an emergency or public necessity exists… and convening at one location of a quorum of the board is difficult or impossible.” Thus, holding any portion of a meeting using telephone (i.e., placing one or more board members on speaker or conference) is reserved only for emergency situations when a quorum of the board cannot physically gather (hurricanes, “Snowvid,” etc.).

In contrast, when a quorum is able to convene in one location but a trustee, unable to attend, desires to participate remotely, videoconference is the only option envisioned by the Government Code. The videoconference exception would enable a trustee who might need to be absent for personal reasons, such as travel, illness, or quarantine (as the current question addresses), to log into the meeting via videoconferencing platform (e.g., Zoom, Skype, Microsoft Teams, or even FaceTime) and participate to the same extent as those in attendance. Of critical importance is that the video stream must remain live at all times, with audio and visual accessibility to the community.

In sum, any videoconference participation must comply with the following requirements:

  • the video and audio feed of the trustee’s participation is broadcast live at the meeting;
  • the member participating by videoconference is counted as present;
  • both locations (where the quorum is present and where the absent member is located) have two-way communication during the entire meeting;
  • the face of each participant in the videoconference call is clearly visible and his/her voice clearly audible (this applies to both the absent trustee and all physically present board members);
  • members of the public in attendance at open session are able to clearly see and hear the absent member participating by videoconference; and
  • the videoconference call complies with the Department of Information Resources’ specific technological requirements regarding the quality of audio/video signals during video calls. [1 TAC 209.10-.11]

Importantly, any loss in connection will result in the trustee being counted as “absent” for that portion of the meeting. As such, maintaining live video and audio feed of all participants on the call during the entirety of the meeting is critical. It is recommended that your district perform a test of the equipment and audio/visual capabilities prior to your meeting.

With regard to closed session, the trustee may continue to participate via live feed; however, the stream and audio must remain visible only to those participating in the closed session.

Lastly, your meeting notice does not need to contain any particular language regarding the possibility of remote participation by one or more board members. It need only state the location of the quorum of the Board (as normal) and meet all other notice requirements under the Texas Open Meetings Act. This means that a last minute decision to “feed” a board member into the meeting via video can be made so long as the above requirements are met.

Contact your local school district attorney should you have additional questions regarding remote participation by trustees at school board meetings.

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