Council member can attend remotely
After multiple emails and research, a City Council member was given approval to attend the Tuesday, July 19, City Council meeting remotely.
Council member Merrill White sent an email to Mayor Jackie Crabtree July 8 informing the mayor he would be out of town for business for the scheduled meeting and “would like to attend the meeting through Zoom.”
On July 11, the mayor responded to White’s email with “Merrill, I checked with the municipal league and we can not use zoom for council meetings.”
When Crabtree was asked what law he was citing, he said, “I am not citing any law just direction from the municipal league. The use of Zoom was only a temporary thing during COVID.”
When asked why other cities could use Zoom, Crabtree replied, “Not sure, the waiver for this kind of meetings was only during the pandemic.”
Crabtree said he had texted Mark Hayes, director of the Arkansas Municipal League. He asked: “…the use of zoom meetings are no longer a legal alternative for a council member to attend meetings correct?”
Hayes responded: “Correct” then added “…you likely could allow one or two people todo so in an emergency but I’d be very judicious determining whether it’s worth the risk.”
On July 13, White shared an opinion from the attorney general with city attorney Shane Perry who responded to White with “It is my legal opinion that a council member can attend a city council meeting by telepresence, provided his/ her participation is done in a manner that meets all requirements of the Arkansas Freedom of Information Act.
“My conclusion is based upon the following sources: Rehab Hosp. Serv. Corp. v. Delta-Hills Health Sys. Agency, Inc., 687 S.W.2d 840 (Ark. 1985); John J. Watkins et al., The Arkansas Freedom of Information Act 359 (6th ed. 2017); Opinion No. 2000-096 (Ops.Ark.Atty.Gen. March 20, 2000); and Opinion No. 2008-055 (Ops.Ark.Atty. Gen. Mary 7, 2008).”
An opinion provided by the state Attorney General’s office in June 2018 to a prosecuting attorney in Benton asking about procedural rules being adopted allowing council members to attend via conference call stated “… the proposed rules, the answer is ‘no.’ The rules as described would not violate state law, in my opinion.”
Rutledge goes on to state that city councils may make rules of procedure and as long as the do not violate the open meetings portion of the FOI and all persons may hear both parties, including the party attending remotely, a council member may attend a meeting remotely.
The conclusion by Rutledge states “My research has disclosed no other provision of state law that would prohibit the proposed rules you have generally described. The answer to your question is therefore “no,” in my opinion. These rules would not violate state law.”
Attorney Noah P. Watson, with Quattlebaum, Grooms and Tull, said city councils have the power to determine the rules of their proceedings and that state law does not prohibit remote attendance at meetings as long as the discussion can be heard and does not violate the state’s Freedom of Information Act.
Citing state law, Watson said, “Arkansas Code Annotated § 14-43-501(1)(2)(A) provides: “A majority of the whole number of members of [the city council] constitutes a quorum for the transaction of business.” Neither the statute nor Arkansas case law addresses whether city council members must be physically present to constitute a quorum. But the statutes addressing quorums for school boards and boards of directors both indicate that a quorum is generally counted based on members physically present, unless there is a statute or rule to the contrary. See Ark. Code Ann. §§ 4-33-820(c), 6-13619(c)(1)(A).”
On July 13, White received an email from Crabtree, “Merrill we will get you connected vis speaker phone for the meeting.”