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 whether a city council may meet virtually under its procedural rules and whether two statutes permitting virtual meetings remained effective. Attorney General Leslie Rutledge approved virtual meetings under council rules if safeguards for public attendance are in place. She found that Act 56 applied during the emergency declaration in effect when she wrote the opinion.

On the first question, a city council that adopts rules under Ark. Code Ann. § 14-43-501 can hold its meetings electronically if members of the public can listen, or listen and view, through appropriate electronic means. The AG built on a 2018 opinion (Op. Att'y Gen. 2018-017) about telephone-conference attendance at committee meetings and extended its reasoning to full council meetings. Council rules must provide proper notice and protect the public's right to attend under the Arkansas FOIA.

On the second question, Act 2 of 2020's special language permitting virtual meetings expired December 31, 2020; the appropriation act as a whole expired June 30, 2021. Act 56 of 2021 codified the expired language at § 25-19-106(e), but its virtual-meeting provision applies only during a gubernatorial disaster-emergency declaration. The AG said it was applicable because of the July 29, 2021 declaration, and would become inapplicable when that order was rescinded.

The opinion therefore describes council rules under § 14-43-501 and the emergency-dependent provision of Act 56 as separate sources of authority at the time it was issued.

Currency note

This opinion describes the law and a disaster-emergency declaration as of August 18, 2021. It does not establish whether an emergency declaration is in effect today. Check the current text of § 25-19-106 and any later authority before relying on its discussion of Act 56.

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 to the proceedings, or listen and view them, through appropriate electronic means. The enclosed 2018 opinion describes a speakerphone in a room open to the public as one way to make a telephone meeting audible.

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

The AG concluded that a council's procedural rules may allow virtual attendance at council meetings if they preserve public access. The enclosed 2018 opinion addressed counting and voting by telephone for committee members under the rules described there; the 2021 opinion extends its open-meetings reasoning to council meetings generally.

If you are a journalist or member of the public

You have a FOIA-protected right to attend Arkansas city council meetings. The AG said a virtual meeting without safeguards for public attendance violates the FOIA. The enclosed 2018 opinion explains that notice and a means for the public to hear a telephone conference are essential.

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.

Footnote 4: 2020 Ark. Acts No. 2, §§ 42, 43. Act 2 of 2020 as a whole expired June 30, 2021.

Sincerely,
LESLIE RUTLEDGE
Attorney General
Enclosure

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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