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Official Opinion 94-11

Official Opinion 94-11

March 16, 1994
To: 

Executive Director
State Properties Commission

Re: 

Use of a Telephonic Conference for a Regular Meeting of the Commission, Compliance with the Open Meetings Act, and the Requirement for a Quorum.

You have asked whether the State Properties Commission, as a state agency, may conduct a regularly scheduled meeting using a telephonic conference, and whether an individual not physically present at the meeting, but connected telephonically, may be counted to reach a quorum.

With regard to the first question, the Commission may utilize a telephonic conference to conduct a meeting. The Code was amended in 1992 so that (the Open and Public Meetings Act) O.C.G.A. § 50-14-1(f) states: "An agency with state-wide jurisdiction shall be authorized to conduct meetings by telecommunications conference, provided that any such meeting is conducted in compliance with this chapter."

"Agency" is defined in O.C.G.A. § 50-14-1(a)(1)(A) to mean "[E]very state department, agency, board, bureau, commission, and authority." (Emphasis added.) The Code instructs that the meeting should be conducted using communications equipment by means of which all persons participating in the meeting are able to hear each other. O.C.G.A. §§ 14-2-820(b) and 14-3-820(b); 1985 Op. Att'y Gen. 85-26. Thus, some members participating in the meeting will be located physically in a room, with speaker telephones providing access to other members not in that room. The telecommunications equipment being utilized should permit the members not present in the room to hear all matters being discussed, and to allow them to participate with all other members in discussions. Accordingly all participants in the meeting, and members of the public in attendance, must be able to collectively hear and speak with each other.

The second issue is whether or not a member not physically present in the meeting room, but present through the telecommunications equipment, may be counted to reach a quorum. The Attorney General has previously, in considering telephonic conferences for state authorities, adopted the rationale in Nicholson v. Kingery, 261 P. 122 (Wyo. 1927) as being instructive:

It is not the vote alone, of an absent director, that is necessary to constitute a legal meeting. It is not the opinion of a majority of the board of directors, acting as individuals that constitutes the act of the corporation, but the view and vote of a majority in meeting assembled. (Emphasis added.)

1970 Op. Att'y Gen. 70-122, p. 161, quoting Nicholson; 1985 Op. Att'y Gen. 85-26 (presence by telephone conference constitutes presence for quorum).

Accordingly, for a meeting in which the members of the Commission are able to participate by use of telecommunications equipment which permit all persons participating in the meeting to hear each other, participation in such meeting constitutes presence in person at the meeting. The persons communicating by telecommunications equipment may be counted in attendance in order to constitute a quorum or, where a quorum is present, otherwise to participate in the meeting.

Prior to conducting such a meeting, you should review the Commission's internal procedures, to insure that they permit such a telephonic meeting to be utilized. See 1985 Op. Att'y Gen. 85-26.

Therefore, it is my official opinion that utilization of a telephonic conference is permissible for a regular meeting of the State Properties Commission; that such a meeting may be conducted to meet the requirements of the Open and Public Meetings Act; and that members participating by telephonic means in such a meeting may be counted to reach a quorum.

Prepared by:

GEORGE S. ZIER Staff Attorney