Can a Florida town commission count members who join by video as part of the quorum for a public meeting?

Plain-English summary

Manalapan's mayor asked whether the Town Commission could hold meetings where a quorum was made up of some commissioners in the room and others joining by videoconference. The AG's office answered by sending the inquirer the relevant excerpt from the 2016 edition of the Government in the Sunshine Manual, which catalogs prior opinions on the question.

At the time of this opinion, the office's position was that a state agency board could meet entirely by electronic means under section 120.54(5)(b)2., Florida Statutes, but a local board could not. For a city or town commission, county commission, school board, or other local body, the requisite number of members for a quorum had to be physically present at the public meeting site. Once a physical quorum was in the room, an absent member could participate by speakerphone or other interactive technology only when the absence was due to extraordinary circumstances such as illness.

The office also drew a line between meetings and workshops. Workshops where no formal action would be taken did not require a physical quorum if the public was given proper notice and interactive access. But where a quorum was needed to act, physical presence was the rule.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The 2020 COVID-era emergency orders in particular shifted what Florida boards may do remotely, and the legislature has revisited communications media technology rules since. Confirm the current state of section 286.011 jurisprudence and any post-2020 statutory authority before applying any rule from this 2016 opinion.

Common questions

Q: Could a Florida city council hold a meeting entirely by Zoom in 2016?
A: Not for any business requiring a quorum. The opinion drew on AGO 98-28 and other prior opinions to say the authorization in section 120.54(5)(b)2., Florida Statutes, to conduct meetings entirely by communications media technology applied only to state agencies. Local boards had to have a physically present quorum.

Q: What was different about state agency boards?
A: State agencies operated under uniform rules of procedure adopted by the Administration Commission (Rule 28-109, F.A.C.) that set out notice and public-access requirements specifically for electronic meetings. The legislature had not extended that statutory framework to city or county boards.

Q: Could an absent member join by phone or video at all?
A: Yes, once a physical quorum was in the room. Prior opinions (AGOs 92-44, 94-55, 02-82, 03-41) allowed an absent member to participate by phone or interactive electronic technology when the absence was due to extraordinary circumstances such as illness. AGO 03-41 noted that whether a scheduling conflict counted as extraordinary was a judgment for the board itself.

Q: What about workshops or informal discussions?
A: The opinion's quoted excerpt said physical presence was not required for workshops where no formal action would be taken, as long as proper public notice and interactive electronic access were provided. AGO 01-66 went further and said the public also needed designated physical locations with computer access. AGO 02-32 warned that an electronic bulletin board running over days or weeks could not substitute for a real meeting under the Sunshine Law.

Q: Were there exceptions where local boards could meet entirely electronically?
A: The excerpt flagged section 163.01(18), Florida Statutes, which authorized certain entities created by interlocal agreement to conduct public meetings and workshops by communications media technology. School boards faced an extra constraint: section 1001.372(2)(b) required them to meet at a "public place in the county," reinforcing physical-presence quorum rules.

Background and statutory framework

Florida's Government in the Sunshine Law, section 286.011, Florida Statutes, requires that meetings of any state or local board or commission be open to the public, properly noticed, and minuted. The Sunshine Manual published annually by the AG's office collects opinions and case law interpreting that requirement. The 2016 manual was the source the office quoted back to Mayor Cheifetz.

The legal architecture at the time of this opinion ran in two tracks. State agencies operated under Chapter 120 (the Administrative Procedure Act), which since 1992 had given them explicit authority to meet by communications media technology subject to rules adopted by the Administration Commission. Local governments operated under a patchwork of organic statutes (Chapter 166 for municipalities, Chapter 125 for counties, Chapter 1001 for school districts), none of which carried a parallel authorization for fully-electronic meetings. The AG's office filled the gap by reading section 286.011's notice and access requirements to demand physical presence for quorum-bearing actions, with limited carve-outs for absent members and for non-action workshops.

Citations and references

Statutes:

• § 120.54(5)(b)2., Fla. Stat. (state agency meeting procedures)
• § 1001.372(2)(b), Fla. Stat. (district school board meetings)
• § 163.01(18), Fla. Stat. (interlocal agreements)
• § 286.011, Fla. Stat. (Sunshine Law, the underlying open-meetings statute)

Prior AG opinions cited in the excerpt: AGO 98-28, AGO 09-56, AGO 10-34, AGO 03-41, AGO 94-55, AGO 92-44, AGO 02-82, AGO 01-66, AGO 08-65, AGO 02-32; Inf. Op. to Ciocchetti, March 23, 2006; Inf. Op. to Sugarman, August 5, 2015.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/videoconferences-public-meetings
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1512

Original opinion text

The Honorable David Cheifetz

Mayor, Town of Manalapan

600 South Ocean Boulevard

Manalapan, Florida 33462-3398

Dear Mayor Cheifetz:

The Office of the Attorney General has received your inquiry as to whether the Manalapan Town Commission may conduct public meetings in which a quorum could consist of both commissioners who are physically present and commissioners who are not physically present but are participating by videoconference.

This office has addressed public meetings via electronic media in prior opinions that are cited in the following excerpt from the 2016 edition of the Government in the Sunshine Manual:[1]

"2. Authorization to conduct public meetings via telephone, video conferencing, computer, or other electronic media

a. State boards

In AGO 98-28, the Attorney General's Office concluded that s. 120.54(5)(b)2., F.S., authorizes state agencies to conduct public meetings via electronic means provided that the board complies with uniform rules of procedure adopted by the state Administration Commission. These rules contain notice requirements and procedures for providing points of access for the public. See Rule 28-109, F.A.C.

b. Local boards

(1) Meetings

As to local boards, the Attorney General's Office has noted that the authorization in s. 120.54(5)(b)2., to conduct meetings entirely through the use of communications media technology applies only to state agencies. AGO 98-28. Thus, since s. 1001.372(2)(b), F.S., requires a district school board to hold its meetings at a 'public place in the county,' a quorum of the board must be physically present at the meeting of the school board. Id. And see AGOs 09-56 (where a quorum is required and absent a statute to the contrary, the requisite number of members must be physically present at a meeting in order to constitute a quorum), and 10- 34 (city may not adopt an ordinance allowing members of a city board to appear by electronic means to constitute a quorum). Cf. s. 163.01(18), F.S., authorizing certain entities created by interlocal agreement to conduct public meetings and workshops by means of communications media technology. However, if a quorum of a local board is physically present, 'the participation of an absent member by telephone conference or other interactive electronic technology is permissible when such absence is due to extraordinary circumstances such as illness[;] . . . [w]hether the absence of a member due to a scheduling conflict constitutes such a circumstance is a determination that must be made in the good judgment of the board.' AGO 03-41.

For example, if a quorum of a local board is physically present at the public meeting site, a board may allow a member with health problems to participate and vote in board meetings through the use of such devices as a speaker telephone that allow the absent member to participate in discussions, to be heard by other board members and the public and to hear discussions taking place during the meeting. AGO 94-55. And see AGOs 92-44 (participation and voting by ill county commissioner), and 02-82 (physically-disabled city advisory committee members participating and voting by electronic means).

(2) Workshops

The physical presence of a quorum has not been required where electronic media technology (such as video conferencing and digital audio) is used to allow public access and participation at workshop meetings where no formal action will be taken. The use of electronic media technology, however, does not satisfy quorum requirements necessary for official action to be taken. For example, the Attorney General's Office advised that airport authority members may conduct informal discussions and workshops over the Internet, provided proper notice is given, and interactive access by members of the public is provided. AGO 01-66. Such interactive access must include not only public access via the Internet but also at designated places within the authority boundaries where the airport authority makes computers with Internet access available to members of the public who may not otherwise have Internet access. Id. For meetings, however, where a quorum is necessary for action to be taken, the physical presence of the members making up the quorum would be required in the absence of a statute providing otherwise. Id. Internet access to such meetings, however may still be offered to provide greater public access. Id. Cf. AGO 08-65, noting that a city's plan to provide additional public access to on-line workshop meetings by making computers available at a public library 'should ensure that operating-type assistance is available at the library where the computers are located.'

However, the use of an electronic bulletin board to discuss matters over an extended period of days or weeks, which does not permit the public to participate online, violates the Sunshine Law by circumventing the notice and access provisions of that law. AGO 02-32. And see Inf. Op. to Ciocchetti, March 23, 2006 (even though the public would be able to participate online, a town commission's proposed use of an electronic bulletin board to discuss matters that foreseeably may come before the commission over an extended period of time would not comply with the spirit or letter of the Sunshine Law because the burden would be on the public to constantly monitor the site in order to participate meaningfully in the discussion). Compare AGO 08-65 (city advisory boards may conduct workshops lasting no more than two hours using an on-line bulletin board if proper notice is given and interactive access to members of the public is provided).

Moreover, there is no apparent authority for the use of electronic media technology to allow board members to remove a workshop or meeting from within the jurisdiction in which the board is empowered to carry out its functions and claim compliance with the Sunshine Law by providing the public electronic access to the remote meeting. Inf. Op. to Sugarman, August 5, 2015."

I hope this excerpt and the opinions cited are helpful to you. I recommend that you contact your Town Attorney for further guidance in this matter.

Sincerely,

Ellen B. Gwynn

Assistant Attorney General

EBG/tsh

[1] Government in the Sunshine Manual, pp. 16-17 (2016 ed.). The manual is available online at: http://www.myfloridalegal.com/sun.nsf/sunmanual. Attorney General Opinions are available online at: http://myfloridalegal.com/ago.nsf/Opinions.