Can an Arkansas city council allow its committee members to attend committee meetings by phone if the public can hear them through a speakerphone?

Plain-English summary

Prosecuting Attorney Ken Casady asked AG Leslie Rutledge whether the City of Benton could adopt procedural rules letting city council members participate in committee meetings by conference call. Under the proposed rules, council members joining by phone could discuss, count toward quorum (if they were on the committee), and vote, with their voices broadcast through a speaker so anyone physically attending the meeting could hear.

The AG concluded that the rules did not violate state law. Two threads supported the conclusion:

First, Ark. Code Ann. § 14-43-501 explicitly authorized a city council to set its own rules of procedure. The list of suggested topics in the statute was non-exhaustive, so the council had broad authority to address things like remote participation.

Second, the Arkansas FOIA open-meetings statute (Ark. Code Ann. § 25-19-106) treats committees made up at least in part of council members as "governing bodies" whose meetings must be public. The AG read Rehab Hospital Services Corporation v. Delta-Hills Health Systems Agency, Inc. as confirming that telephone-conference participation is permissible if (1) proper public notice is given, and (2) a speakerphone is set up so the public and press can hear the entire conversation. Without those safeguards, a phone meeting violates FOIA.

Because the proposed rules built in speakerphone access for the public, and because the AG found no other state law forbidding the practice, the rules passed.

Currency note

This opinion was issued in 2018. 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.

Common questions

Q: Are city council committees subject to the Arkansas FOIA?
A: Yes. Arkansas Gazette Co. v. Pickens and AG opinions interpreting it have treated committees composed in part of governing-body members as themselves "governing bodies" under the FOIA. Their meetings must be public unless an executive-session exemption applies.

Q: What did the Rehab Hospital case say about phone meetings?
A: The Arkansas Supreme Court observed in Rehab Hospital Services Corporation v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), that a "telephone poll, if conducted with proper notice, and if conducted with telephones available to the public and press, could have been an acceptable type of open meeting." That language has supported the AG's recurring view that telephone conferencing is permissible if the public can hear.

Q: What safeguards did the AG flag for telephonic open meetings?
A: Two: public notice (so members of the public know when and where to show up), and a speakerphone or similar device in the meeting room so attendees can hear all parts of the conversation as if the absent member were physically present.

Q: Could a city council use the same approach for full council meetings, not just committee meetings?
A: This opinion was scoped to committee meetings. The same FOIA reasoning would apply if a council adopted similar rules for its regular or special meetings, though the scope and consequences would be broader.

Q: Did the AG suggest any limits?
A: A municipality can only adopt rules "not contrary to the general laws of the state" (Ark. Const. art. 12, § 4; Ark. Code Ann. § 14-55-101). FOIA is the binding general law here. If a rule attempted to dispense with public access (for example, using speakerphone-free phones or skipping notice), the rule would fail.

Q: What about state-affair vs. municipal-affair preemption?
A: The AG noted that "public information and open meetings" is designated as a "state affair" by Ark. Code Ann. § 14-43-601(a)(1)(A), so a municipality cannot legislate around the FOIA's open-meetings requirement. A municipality can adopt rules on state affairs that supplement state law but cannot conflict with it.

Q: Could a council member joining by phone count toward a quorum?
A: Under the rules described, yes, if the member was on the committee. The AG's analysis did not single out the quorum-counting feature as a problem, treating it as part of the broader rule that was permissible because public access was preserved.

Background and statutory framework

Arkansas city councils derive their procedural rule-making authority from Ark. Code Ann. § 14-43-501(a)(2)(C). The statute requires the council to determine its own rules of proceedings and lists illustrative topics (agenda, filings, citizen commentary) "without limitation." That signals broad discretion in rule design.

Ark. Const. art. 12, § 4 limits municipal authority to laws not contrary to general state laws, and Ark. Code Ann. § 14-55-101 reiterates that municipal ordinances must be consistent with state law. Open meetings are governed by the FOIA at Ark. Code Ann. § 25-19-106.

The interplay between municipal authority and FOIA is grounded in Ark. Code Ann. §§ 14-43-601 and -602. Public information and open meetings is a "state affair," which means the FOIA provides the floor that local rules must respect. A municipality can supplement, but cannot override, the FOIA's openness requirements.

Citations and references

Constitutional and statutory provisions:

• Ark. Const. art. 12, § 4 (no municipal laws contrary to general state laws)
• Ark. Code Ann. § 14-43-501(a)(2)(C) (council procedural rule-making)
• Ark. Code Ann. § 14-43-601(a)(1)(A) (open meetings as a state affair)
• Ark. Code Ann. § 14-43-601(a)(2) (municipal action on state affairs allowed if not in conflict)
• Ark. Code Ann. § 14-43-602 (limits on municipal authority over state affairs)
• Ark. Code Ann. § 14-55-101 (municipal ordinances must be consistent with state law)
• Ark. Code Ann. § 25-19-106 (open meetings)
• Ark. Code Ann. § 25-19-106(c) (executive sessions)

Cases:

• Rehab Hospital Services Corporation v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985) (telephone-conference participation under FOIA)
• Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (committees as governing bodies)
• City of Fort Smith v. Hous. Auth. of City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974)
• Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974)

Other authority:

• John J. Watkins, Richard J. Peltz-Steele, & Robert Steinbuch, The Arkansas Freedom of Information Act 344 (Ark. Law Press, 6th ed. 2017)

Prior AG opinions referenced:

• Op. Att'y Gen. 2017-118
• Op. Att'y Gen. 2014-124

Source

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

Original opinion text

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