UNDERSTANDING CONNECTICUT’S FOIA: Electronic participation by board members at meetings: When and how it can be “legal”?

A common problem for boards of education is getting enough members in attendance at a board meeting in order to have a quorum (usually, a majority of the board).  There may be times when a board member wishes to participate in the board’s business (and vote) at a particular meeting, but the member may be out of town or otherwise unable to attend.  Allowing a board member to participate by electronic means may be essential for having a quorum and being able to carry out “board business”.  Generally, such electronic participation would be by way of the old fashioned telephone, but could also be via “Skype” and other similar modern implements.

Connecticut’s Freedom of Information Act (“FOIA”) was enacted in 1975, when technology was less advanced.  Nevertheless, the FOIA’s definition of “meetings” expressly includes proceedings “whether in person or by means of electronic equipment”.   As such, the FOIA on its face permits board members to participate in board meetings electronically.  Connecticut’s Freedom of Information Commission (“FOIC”) has provided some general principles that must be followed if and when a board permits a member to participate in a meeting electronically.  In addition to the FOIA, a board cannot lose sight of the commands of Robert’s Rule of Order (and the board’s bylaws) that might impact electronic participation by board members.

Specifically, in a prior advisory opinion from 1980, the FOIC stated:

Compliance with [the FOIA], therefore, requires that a meeting of a public agency be conducted in such a manner that every person in attendance has the opportunity to observe all of the discussions and actions transpiring at the meeting.  In the context of a meeting held by means of telephonic or electronic equipment, the following minimum conditions must be met:  … All those in attendance at the meeting, at whatever location, must be able to hear and identify adequately all participants in the proceedings, including their individual remarks and votes.  While the Commission does not have the technical expertise to advise which telephonic or electronic devices would meet this condition now or in the future, existing conference call equipment in conjunction with loud speakers may be adequate for this purpose.

As such, electronic participation by board members that allows the public to monitor the conduct of the meeting and the individual participation in the meeting by such members does not violate the FOIA.  Obviously, it is essential to have an adequately functioning speakerphone (or videoboard, as the case may be) so that the members of the public attending the meeting and sitting in the audience can hear what the absent board member is stating when he or she speaks (and votes).

There are further practical issues with permitting a board member to participate electronically in a meeting.  For example, must the board have in place policies or bylaws expressly permitting a board member to participate electronically?  Nothing in the FOIA requires that a board have such bylaws in place before permitting such electronic participation.  However, it is much preferred that a board err on the side of caution and have in place bylaws to address the circumstances and procedures for electronic participation in meetings by members.

Having such bylaws will address possible issues with respect to violations of any parliamentary procedures previously adopted by the board.  There is at least some ambiguity in Robert’s Rules of Order and whether it could be interpreted as requiring bylaws expressly permitting electronic participation by members to be in place before allowing such participation.  In addition, a board may already have in place other bylaw provisions that could be interpreted as prohibiting such electronic participation (for example, provisions referring to “attendance” and “presence” of board members, and quorum requirements).  As such, regardless of whether a board could “suspend the rules” in order to allow electronic participation by a board member, it is better to be safe than sorry and have explicit bylaws in place on this issue.

In addition, it is best to have protocols in place that address how and when such telephonic/electronic participation occurs in order to avoid confusion.  For example, common issues that may need to be addressed are: 1) under what circumstances will a board member be permitted to participate by telephone/electronically (e.g., being “out of town”, illness, weather), 2) whether the member must provide advance notice in order to participate by telephone, 3) whether the member will count towards satisfying any quorum requirements, 4) when the member can enter or exit a meeting, and 5) what will occur if there are any interruptions via technological issues.  Please note: It is plausible to have a quorum be inclusive of a member participating electronically, knowing that if the board has a bare quorum inclusive of the electronic participant and if you lose contact with that member, then the meeting must adjourn for lack of quorum.

These and other issues are discussed  in more detail in Understanding Connecticut’s Freedom of Information Act, by Mark J. Sommaruga, Esq.  For a copy of this book, please click here.

Please note: this post is adapted from an article written by the author for the CABE Journal.