OPINION NO. OAG 39-80,

Wisconsin Attorney General Opinions

17 June 1980

Emergency Number Systems Board;

Open Meeting;

A telephone conference call involving members
of a governmental body is a meeting which
must be reasonably accessible to the public
and the required public notice must be given.

KENNETH E. LINDNER, Secretary Department of
Administration

You note that on May 21, 1979, the Governor
issued a memorandum to all state agencies to
conserve energy by limiting travel and in
part suggested

     there should be maximum usage of the
     telephone and telephone conferencing
     capabilities, the mails, and other
     available communication networks
     in lieu of travel.

You state that the Emergency Number Systems
Board, which is created by section 15.105(9),
Stats., and is composed of eleven members,
many of whom reside in areas distant from
Madison, would like to conduct certain
business by telephone for a number of reasons
including the conservation of energy.

You inquire

     whether telephone conference calls
     between members of a public body is
     permissible or whether it constitutes
     a "meeting" under Wisconsin's
     Open Meeting Laws.

The alternatives you present in your question
are not necessarily mutually exclusive.

Rather, there are two distinct questions.

1.   Does a telephone conference call among
     members of a governmental body
     constitute a meeting for the
     purpose of the open meetings law?

2.   If it does, is such a meeting
     permissible?

As to the first question, it is my opinion
that a telephone conference call among
members of a governmental body, and
especially a majority thereof, does
constitute a "meeting" as the term is
defined in section 19.82(2), Stats.:

 

69 OAG 143 144 145 146

19.82(2)

     "Meeting" means the convening of members
     of a governmental body for the purpose
     of exercising the responsibilities,
     authority, power or duties delegated
     to or vested in the body.

     If one-half or more of the members of a
     governmental body are present, the
     meeting is rebuttably presumed to
     be for the purpose of exercising
     the responsibilities, authority,
     power or duties delegated to
     or vested in the body.

     The term does not include any social or
     chance gathering or conference which is
     not intended to avoid this subchapter.

It is true that in a telephone conference
call participants do not convene in the
traditional sense because they are not
physically gathered together.

But they are convened in the sense that they
can effectively communicate and exercise
the authority vested in the body.

To hold otherwise would allow the intent
and purpose of the law to be frustrated by
resort to any one of a number of modern
communication techniques that permit
communication without the participants
being physically gathered together.

The second question is whether a telephone
conference meeting may be conducted in a
manner that satisfies the open meetings law.

It is my opinion that it can.

The legislative policy underlying the open
meetings law is stated in section 19.81(2),
Stats.:

19.81(2)

     To implement and ensure the public
     policy herein expressed, all meetings of
     all state and local governmental bodies
     shall be publicly held in places
     reasonably accessible to members of the
     public and shall be open to all citizens
     at all times unless otherwise expressly
     provided by law.

As stated in 67 Op. Att'y Gen. 126 (1978):

     The statute does not require that all
     meetings be held in publicly owned
     places but rather in places
     "reasonably accessible to
     members of the public."

     There is no requirement that the place
     which has the greatest accessibility
     be utilized or that it be owned
     by the public.
 

     Public meetings are often held in
     privately owned hotels, theaters, etc.

 

69 OAG 143 144 145 146

     . . . The test to be utilized is
     whether the meeting place is "reasonably
     accessible," and that is a factual
     question to be determined in each case.

A telephone conference meeting may be
considered "reasonably accessible"
if the public and news media
may effectively monitor it.

This can be accomplished by the use of a
speaker that broadcasts the telephone
conference located at one or more sites to
which the public and news media have access.

In such a situation the public and the media
have the same "access" to the discussions as
each member of the body who is on the line.

Conversely, a telephone conference meeting
that was conducted in such a manner that
would deny the public and news media an
opportunity to effectively monitor would
not comply with the open meetings law.

I might point out that by using more than one
public listening site, there is the potential
for making a meeting accessible to more
people at more locations than the traditional
single meeting where the members of a
governmental body physically gather.

There are several types of public business
which I would consider inappropriate
for a conference call meeting.

As an example, many public bodies conduct
business in a manner which encourages, and
in some instances requires, public
participation or comment at the meeting.

While current technology would allow members
of the public to "plug in" or participate
through a speaker phone, the process would
likely be cumbersome and discouraging to
participants.

Similarly, many bodies routinely conduct
hearings or inquiries where the demeanor
of witnesses or participants is valuable
in assessing both the weight and
credibility of the presentation.

Finally, there are meetings where complex
plans, engineering drawings, charts,
and the like need to be displayed
and explained.

In my view each of the above situations and
like situations would not be "reasonably
accessible to the public" because important
parts of the deliberations could not or
would not be communicated to the
public or the media.

As you know, the open meetings law applies
to all governmental bodies in the state.

Your concern for energy savings and
convenience should not in most instances be
an excuse for holding telephone conference
meetings at the local level where distances
are smaller.

 

69 OAG 143 144 145 146

In principle, the public should be
getting the most open and accessible
government possible.

This opinion holds only that telephone
conference calls are an acceptable method
of convening a meeting.

They are probably not the most desirable
method of doing so and should be used
sparingly and with the spirit of
the law in mind.

Finally, any meeting conducted via a
telephone conference call is subject
to all the provisions of the open meetings
law, sections 19.81-19.89, Stats., including
the public notice requirements under
section 19.84, Stats.

BCL:DJH:RWL
 

69 OAG 143 144 145 146