Can an Arkansas city council legally hold its meetings online if it has rules letting members attend virtually, and is the COVID-era virtual-meeting law still in effect?

Plain-English summary

A state representative asked the AG two related questions about whether Arkansas cities can keep meeting virtually after the original COVID-era authority expired. Attorney General Leslie Rutledge said yes for both, but with conditions.

On the first question, a city council that adopts rules under Ark. Code Ann. § 14-43-501 can hold its meetings electronically as long as members of the public can listen, and depending on the format, watch and participate in the discussion. The AG built on a 2018 opinion (Op. Att'y Gen. 2018-017) that approved telephone-conference attendance at committee meetings, finding the same logic extends to full council meetings. The condition is that the rules must protect the public's open-meetings rights under the Arkansas FOIA: proper notice, real ability to attend (audibly, or audibly and visibly via electronic means), and no closed-circuit-without-public access setups.

On the second question, the COVID-era virtual-meeting authority broke into two parts. Act 2 of 2020 was special-language appropriation that expired December 31, 2020 (with the act's own term ending June 30, 2021). Act 56 of 2021 is permanent in the code at § 25-19-106(e), but it is conditional: it applies only during a gubernatorial disaster-emergency declaration under the Arkansas Emergency Services Act of 1973. Because Governor Hutchinson declared an emergency on July 29, 2021 (responding to the COVID delta-variant surge), Act 56 was in force at the time of the opinion. When that executive order is rescinded, Act 56's provisions become inapplicable.

So Arkansas cities had two parallel paths to virtual meetings during the pandemic: the rule-based path under § 14-43-501 (no emergency required) and the statutory path under Act 56 (only during emergencies). The rule-based path is still available now whenever a city wants to use it.

Currency note

This opinion was issued in 2021. The specific emergency declaration cited (Governor's Executive Order 21-14, July 29, 2021) has long since been rescinded, and Act 56's conditional authority would only re-activate during a future gubernatorial disaster-emergency. The rule-based path under § 14-43-501 (and the analytical framework in Op. Att'y Gen. 2018-017 that this opinion adopts) remains the more durable route for routine virtual or hybrid council meetings. Verify the current text of § 25-19-106 and confirm any newer AG opinions before relying on the specifics here.

What this means for you

If you are a city attorney drafting virtual-meeting rules

Don't lean on Act 56 of 2021 unless there is an active gubernatorial emergency declaration. The more durable authority is the city council's own procedural rule-making power under § 14-43-501, paired with FOIA's open-meetings safeguards. Build the rules around three guarantees:

1. Notice. Publish the meeting time, the platform (Zoom/WebEx/teleconference call-in), and the access link or call-in number in advance the same way you would publish the location of an in-person meeting.
2. Public attendance. Provide a means for the public to listen (and ideally watch) the proceedings live. The Arkansas Supreme Court in Rehab Hospital, and Op. Att'y Gen. 2018-017, both treated speakerphone-broadcast-to-room as sufficient for telephone meetings; modern equivalents are public livestreams or open Zoom rooms.
3. Public participation, when required. If your council has a public-comment portion, the virtual format must let attendees comment.

If you skip these, the AG and the FOIA case law treat the meeting as a violation, and any action taken at it is at risk.

If you are a council member or mayor

You can attend virtually under properly adopted rules. Your participation counts toward the quorum and you can vote, as Op. Att'y Gen. 2018-017 confirmed for committee meetings and as this 2021 opinion extended to full council meetings. Just check that the rule you are operating under provides for members and the public both, not just members.

If you are a journalist or member of the public

You have a FOIA-protected right to attend Arkansas city council meetings. If a city goes virtual without giving you a way to listen in real time, that is a FOIA violation. The fact pattern from Rehab Hospital matters: a "telephone poll" or virtual meeting without public access is impermissible. Document the failure (no link, dead link, password not provided in notice) and you have a strong basis for a complaint.

Common questions

Q: Can my city council still meet virtually if there is no emergency declaration?
A: Yes, under its own rules of procedure adopted per § 14-43-501, and so long as FOIA's open-meetings safeguards are honored. Act 56 of 2021 supplies a separate path that only applies during a gubernatorial disaster-emergency declaration.

Q: What rules of procedure does § 14-43-501 actually authorize?
A: It says the council "shall determine the rules of its proceedings." That power is broad, "without limitation," and includes the ability to authorize virtual or hybrid attendance. Subject to two constraints: rules cannot be contrary to general state law (Ark. Const. art. 12, § 4; § 14-55-101), and topics like open meetings are designated as "state affairs" under § 14-43-601(a)(1)(A), so any local rule must comply with state open-meetings law.

Q: What does FOIA require for an open meeting?
A: Real-time public access. The Arkansas Supreme Court's decision in Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), held that a telephone-poll vote without public-and-press notice and access was not an acceptable open meeting. The AG and the leading commentators (Watkins, Peltz-Steele & Steinbuch) summarize the rule as: notice plus a means for the public and press to listen.

Q: Are committee meetings treated the same as full council meetings?
A: Same FOIA framework. The 2018 opinion this opinion adopts addressed committees specifically. The 2021 opinion confirms the analysis extends to full council meetings.

Q: What happens if my city has a virtual rule but the technology fails mid-meeting?
A: The opinion does not directly answer that. The safer practice is to suspend deliberation, restore access, and resume only when public access is back. Action taken while the public is locked out invites a FOIA challenge.

Background and statutory framework

Two layers of authority for Arkansas city-council virtual meetings:

1. Local rule-making: Ark. Code Ann. § 14-43-501 grants city councils broad authority to set their own rules of procedure. Coupled with FOIA open-meetings compliance, this lets a council authorize virtual or hybrid attendance even outside emergencies. Op. Att'y Gen. 2018-017 (incorporated by this 2021 opinion) is the analytical core.

2. State emergency rule: Act 56 of 2021 (codifying language from Act 2 of 2020) is now Ark. Code Ann. § 25-19-106(e). It permits public entities to "assemble, gather, meet, and conduct an open public meeting through electronic means" during a gubernatorial disaster emergency declared under Ark. Code Ann. § 12-75-101 et seq. (Arkansas Emergency Services Act of 1973). It is dormant when no emergency is in effect.

The FOIA open-meetings provision is at Ark. Code Ann. § 25-19-106. The Arkansas Supreme Court's reading in Rehab Hospital remains the controlling authority on what "open" requires for a non-physical gathering.

Citations

• Ark. Code Ann. § 14-43-501 (council procedural rule-making)
• Ark. Code Ann. § 25-19-106 (FOIA open meetings)
• Ark. Code Ann. § 25-19-106(e) (Act 56 of 2021 virtual-meeting authority during emergency)
• Ark. Code Ann. § 12-75-101 et seq. (Arkansas Emergency Services Act of 1973)
• Ark. Code Ann. § 14-43-601(a)(1) (open meetings designated as state affair)
• Ark. Const. art. 12, § 4 (no municipal law contrary to state law)
• Ark. Code Ann. § 14-55-101 (consistency-with-state-law requirement)
• Act 2 of 2020 (fiscal session, expired)
• Act 56 of 2021
• Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985)
• Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975)
• Op. Att'y Gen. 2018-017 (committee virtual attendance)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-048
August 18, 2021
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable David Whitaker
State Representative
717 North Lewis Avenue
Fayetteville, AR 72701-1611
Dear Representative Whitaker:

This is in response to your request for my opinion regarding Arkansas cities'
conducting their city council meetings virtually. In your correspondence, you
referred to a 2018 opinion from this office, wherein I opined that a city council may
adopt rules to enable council committees to conduct open public meetings by
telephone conference so long as there is some means of ensuring that members of
the public in attendance can hear the conversation. In light of that opinion and
recently enacted state law concerning virtual public meetings, you have asked the
following questions:

1. If a city council has adopted rules of procedure pursuant to Arkansas
   Code § 14-43-501, which includes authorization to meet virtually rather
   than physically, can the city council meet through electronic means rather
   than in person as long as there are means in place to ensure that members
   of the public can hear and participate in the conversation and debate?

2. Are Act 2 of the Fiscal Session of the 92nd General Assembly and Act
   56 of the Regular Session of the 93rd General Assembly, either
   collectively or individually, still applicable and effective despite the
   expiration of the Governor's Pandemic Emergency Decree?

RESPONSE

The answer to your first question is "yes," so long as safeguards for the public to
virtually "attend" these meetings are in place and followed. With respect to your
second question, while the relevant portions of Act 2 of 2020 have expired, Act 56
of 2021 is currently applicable because of the Governor's emergency declaration of
July 29, 2021.

DISCUSSION

Question 1: If a city council has adopted rules of procedure pursuant to Arkansas
Code § 14-43-501, which includes authorization to meet virtually rather than
physically, can the city council meet through electronic means rather than in
person as long as there are means in place to ensure that members of the public
can hear and participate in the conversation and debate?

Yes. In Op. Att'y Gen. 2018-017, which I have enclosed for your convenience, I
opined that a city council's rules permitting its members to fully attend council
committee meetings via conference call, wherein a speaker would broadcast a
council member's voice so that it would be audible for anyone in attendance to hear,
did not violate the FOIA. In my opinion, the analysis in that 2018 opinion remains
sound, and that reasoning can easily be extended to council meetings as a whole.

It is important to keep in mind, as I wrote in Opinion 2018-017, that these procedural
rules do implicate the open-meetings section of the Arkansas Freedom of
Information Act (FOIA). Thus, it is crucial that any such rules the city council
promulgates provide for giving proper notice of the virtual meeting and
unmistakably protect the public's right to attend (by being able to listen to, or listen
and view, the proceedings and discussions via the appropriate electronic means).
"If safeguards are not present, however, the meeting violates the FOIA."

Question 2: Are Act 2 of the Fiscal Session of the 92nd General Assembly and
Act 56 of the Regular Session of the 93rd General Assembly, either collectively or
individually, still applicable and effective despite the expiration of the Governor's
Pandemic Emergency Decree?

While the relevant provisions of Act 2 of 2020 have expired, Act 56 of 2021 is
currently applicable. The law that permitted virtual meetings in 2020, and that was
included as special language in appropriation Act 2 of 2020, expired December 31,
2020. However, Act 56 of 2021, which codified Act 2's expired language, and
which only applies during a gubernatorial disaster-emergency declaration, is in
force as of this writing. This is in light of the Governor's emergency declaration of
July 29, 2021. When that executive order is rescinded, the provisions of Act 56
will become inapplicable.

Sincerely,
LESLIE RUTLEDGE
Attorney General
Enclosure

Opinion No. 2018-017
June 27, 2018
The Honorable Ken Casady
Prosecuting Attorney
Twenty-Second Judicial District
102 South Main Street
Benton, AR 72015
Dear Mr. Casady:

You have requested my opinion regarding the City of Benton's authority, pursuant
to Ark. Code Ann. § 14-43-501, to adopt certain procedural rules for its committee
meetings. Your request states that the City of Benton is a city of the first class
operating under the mayor-council form of government. You have provided the
following background regarding the rules under consideration:

[The] rules will allow council members to participate in the
committee meetings by conference call. This will be allowed for
any member of the committee or council member who is not a
member of the committee, who wishes to participate in the
committee meeting. Council members who are present by
conference call will be allowed to participate in the discussion, be
counted toward the quorum requirement if he or she is a member of
the committee and be allowed to vote on any measure. A speaker
will broadcast the council member's voice where it is audible for
anyone in attendance to hear. These rules are being considered for
committee meetings only and are not being considered for regular or
special city council meetings.

With this background information in mind, you ask: "If adopted, would such rules
violate state law?"

RESPONSE

Based on your general description of the proposed rules, the answer is "no." The
rules as described would not violate state law, in my opinion.

DISCUSSION

The statute you have cited, Ark. Code Ann. § 14-43-501, provides that the city
council "shall determine the rules of its proceedings ...." It further identifies
particular subjects for possible rule-making by the council. But it provides that
these are "without limitation."

State law therefore authorizes, and indeed requires, the city council to make rules
of procedure for the conduct of its own government. And the council clearly has
broad authority to promulgate such rules. Section 14-43-501 does not provide
specific authority for the rules you describe (allowing council members to
participate in committee meetings by conference call). But I believe rules of this
sort would generally fall within the statute's broad scope and be permissible, so
long as they are not contrary to any other general state law. The Arkansas
Constitution expressly provides that "[n]o municipal corporation shall be
authorized to pass any laws contrary to the general laws of the state." This
principle is reiterated in the Arkansas Code.

Because the rules in question involve committee meetings of the city council, they
plainly implicate the open-meetings portion of the Arkansas Freedom of
Information Act (FOIA). Particular consideration must therefore be given to this
state law.

Under the FOIA, meetings of "governing bodies" must be conducted as "public
meetings." This requirement extends to meetings of committees that are
composed, at least in part, of members of the city council. Such committees are
"governing bodies" under the FOIA. Their meetings must therefore be open to
the public absent an exemption under the FOIA justifying a closed ("executive")
session.

The procedural rules that you have asked about must be evaluated in light of the
FOIA's open-meetings requirement. You report that council members would be
allowed to participate in committee meetings by conference call. And you state
that members of the public in attendance at the meeting would be able to hear the
voices of those council members who are present by conference call. In my
opinion, the proposed rules as generally described are not contrary to the FOIA. It
is permissible for a governing body to have a meeting by telephone conference if
there is some means of ensuring that members of the public in attendance can hear
the conversation:

In light of [Rehab Hospital Services Corporation v. Delta-Hills
Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840
(1985)], a governing body can hold a discussion or take a vote by
telephone conference call if (1) notice to the public and press has
been given, as the FOIA requires; and (2) a speaker phone or similar
device is set up in a room where the public and press are able to
listen to the conversation. Use of a speaker phone would ensure that
observers can hear all portions of the telephonic communication, just
as if the members of the governing body were physically present at
the meeting. If safeguards are not present, however, the meeting
violates the FOIA.

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.

Sincerely,
LESLIE RUTLEDGE
Attorney General