Governor Abbott temporarily suspended some requirements of the Texas Open Meetings Act due to the COVID-19 pandemic. But those suspensions end on September 1, 2021, and all governmental bodies must return to complying with the statute as written. That means the end of fully virtual public meetings
Under the Texas Open Meetings Act (TOMA), governmental bodies in Texas must conduct their business in meetings that are open to the public.
On March 16, 2020, Governor Abbott suspended certain requirements of TOMA to allow governmental bodies to hold public meetings in a fully virtual setting (e.g. telephonic or videoconference meeting). “Texans deserve transparency in government,” Governor Abbott said, but “strict compliance with [TOMA] could prevent . . . necessary action by numerous governmental bodies in relation to efforts to cope with the COVID-19 disaster.”
As it turns out, fully virtual meetings can be good for transparency and engagement. The public can participate in the meeting from the comfort of their own homes, without spending time and money to travel to a physical meeting location. Public officials seem to like it, too. Nehemiah Pitts III, who chairs the City of Austin’s Community Technology and Telecommunications Commission, said he “saw a massive uptick” in productivity and ability to conduct business at commission and board meetings.
But fully virtual meetings are coming to an end on September 1, 2021. As of that day, governmental bodies will have to resume compliance with the open meetings statute as written.
Some governmental bodies will return to fully in-person meetings. But others may be wondering, can we keep meeting remotely?
Fully virtual meetings generally aren’t allowed under TOMA during ordinary times, but “hybrid” in-person and virtual meetings are allowed. In a hybrid meeting:
- A quorum of the body must be physically present at present at one location of the meeting that is open to the public (i.e., if the board has 5 members, 3 must be physically present).
- Remaining members may attend remotely (i.e., if the board has 5 members, 2 may participate remotely). The video and audio feed of the remote members must be broadcast live at the in-person meeting location(s).
- For a meeting of a state agency or governmental body that extends into 3 or more counties, the public officer presiding over the meeting must be physically present at one location of the meeting that is open to the public.
- An audio recording of the meeting must be made publicly available after the meeting.
- Members of the public must be permitted to physically attend the meeting at a location or locations designated in the meeting notice.
- Members of the public must be permitted to testify at the meeting from a remote location.
The requirements above are set out in Tex. Gov’t Code § 551.127. While a hybrid meeting may not be ideal—it still bears some the burdens of an in-person location, costs of maintaining such meeting location facilities, and travel costs for those attending in person—it offers some of the benefits of fully virtual meetings.
It’s important to remember that, even though the governor has authority to suspend TOMA requirements during a declared disaster, a governmental body can’t unilaterally waive TOMA requirements.
During a July 2021 meeting of the City of Austin’s Community Technology and Telecommunications Commission, the commission considered whether to waive the TOMA requirement that the presiding officer be physically present at an in-person meeting location for a hybrid meeting. There’s no such thing as a “waiver” of TOMA requirements, and failure to comply with TOMA can have serious consequences. As we discuss in another blog post, TOMA provides criminal penalties, including possible jail time, for violations of certain provisions.