Trustee Talk, Issue 6: Trustee Participation in Board Meetings via Interactive Teleconferencing (Part 1 of 2)
Members of our board are sometimes unable to attend board meetings in person. Can they be allowed to participate through interactive teleconferencing?
To clarify the terminology used in examining this topic, "interactive teleconferencing" includes trustee participation through videoconference (e.g. Skype, Lifesize) or telephone from somewhere other than the publicly announced location of the board meeting.
The first priority for any board and administration considering making use of these technologies is to determine if the participation would be legally permissible under the laws and legal guidelines that specify acceptable board meeting procedures. This may include the statutes establishing the community college and the board, the state's open meeting laws, or other guidelines pertaining to public bodies. Statutes establishing the institution typically provide guidance on trustee participation in board meetings. But since most community colleges were established in the 1960s and 70s, these statutes often don't address participation through technological means, as they were drafted under the assumption that physical presence at meetings would continue to be the standard practice.
Open meeting laws and public record requirements in the state can also determine if trustees can use interactive teleconferencing to participate in board meetings. Frequently referred to as "sunshine laws," open meeting laws have implications that extend beyond the board of trustees as the laws are often written to apply to all public entities under a state's jurisdiction. Sunshine laws specify what public entity meetings must be open to the general public, and what communications among public officials constitute a "meeting" subject to these openness requirements.
While a community college board is a specialized public entity and not a government agency, community college boards are subject to state sunshine laws. But as with laws establishing community colleges, a state's sunshine laws may be silent on the topic of meeting participation through technological means. The board should not assume that participation by technological means is sanctioned just because its institutional policies or state sunshine laws do not specifically address the issue: there can also be established case law, executive orders, or other sources of law which determine the legality of participation by technological means. Consequently, the board should consult legal counsel about whether technological participation is allowable, and depending upon the resolution, the board may want to amend its bylaws to describe appropriate and inappropriate usage.
Are there different legal restrictions if a trustee participates via telephone versus videoconference?
Trustee participation in a board meeting via telephone frequently raises the same statutory issues as a trustee participating via videoconference. Because the trustee is not physically present in either scenario, laws often consider these forms of participation as interchangeable when mandating what types of board meeting participation are permissible.
Are videoconferencing and "live streaming" the same thing?
"Live streaming" is different from videoconferencing. When a board "live streams" a meeting, the board is simply broadcasting an in-person meeting of trustees via the internet. When viewing a streamed board meeting, trustees are not using technology to participate in the board meeting itself; technology is being used to disseminate the proceedings of the meeting to a wider audience. So in effect if a trustee simply views a live stream, s/he would not be participating in a board meeting at all--just viewing it. The trustee would have been absent from the meeting altogether, and watching the streaming video remotely would be no different than not attending the meeting at all in terms of meeting participation.
Is there conformity from state to state on guidelines for trustee participation in board meetings through technological means?
In our efforts to research trustee participation in board meetings through interactive teleconferencing, we reached out to a number of state community college associations for assistance. The state associations we spoke with found that state policy on the issue varies widely across the country, with some jurisdictions supporting the practice while others completely prohibit interactive teleconferencing as a form of participation in public meetings. Additionally, we learned open meeting laws and other statutes relating to interactive teleconferencing are still changing: just as this piece was being written, the Michigan State Senate scheduled a hearing on House Bill 4363, which would prohibit participation by a member of a public body via phone or videoconference in meetings subject to the state's open meetings act.
We indicated earlier that the board can't assume that participation in board meetings through technological means is permissible if institutional policies or state sunshine laws do not address the issue, as case law, executive orders, or other sources of law could determine its legality. But in states where there are no guidelines on videoconferencing individual trustees into board meetings in any source of state law, boards often adopt their own virtual participation practices to suit their needs. In such cases, every college in a single state may handle board meeting participation through interactive teleconferencing differently. For example, one policy on board teleconferencing and similar communications at a Pennsylvania college fully permits such participation provided that all persons participating in the meeting can hear one another for the entire discussion of the issue that will be voted on. On the opposite end of the spectrum, some community colleges in Pennsylvania have a case-by-case system of approval for each use of videoconferencing when it is necessary to facilitate absent board member participation.
Karen Smith, General Counsel for the Oregon Community College Association, shared with us that Oregon's public meeting laws authorize meeting participation "through the use of telephone or other electronic communication." This broad language permits Oregon community college trustees to participate in board meetings through videoconferencing, as long as the other requirements of Oregon's public meeting laws are met. But even with such a broad license for trustees to videoconference into meetings, interactive teleconferencing is not regularly used by community college boards in the state.
Word to the Wise
The board should consult with the college's legal representative on the state's open meeting laws and other relevant statutes to determine if interactive teleconferencing can be used by board members, and to understand the specifics of any restrictions on the use of interactive teleconferencing in board meetings. For example, in some cases trustees who participate in board meetings through interactive teleconferencing may not: count as "present" for the purposes of a quorum, have their votes counted, and/or participate in executive sessions. These trustees therefore may only participate as observers.
Look to the next issue of Trustee Talk for Part 2 on what the board needs to consider when deciding whether to permit trustee participation in board meetings through interactive teleconferencing.
Disclaimer: This newsletter is offered for general informational purposes only. It is not offered as and does not constitute legal advice.
Do YOU have a Question for us? Email your question to: Norma Goldstein