During the COVID-19 emergency, can a Florida county or city commission hold its public meetings entirely by video or phone, or does someone have to be physically in the room?

Subject

Public meeting quorums using technology

Plain-English summary

In mid-March 2020, with COVID-19 spreading and Governor DeSantis having issued a state-of-emergency executive order, county and local government officials were asking how they could legally meet without putting people in a room together. The Governor sent a formal request for an AG opinion under section 16.01(3): can local government bodies use teleconferencing or other technology to hold meetings and conduct official business, while still providing public access?

The AG's answer split into two halves. The Sunshine Law half is permissive. Article I, section 24(b) of the Florida Constitution and chapter 286 of the Florida Statutes require that public meetings be open and noticed, but neither requires that the body's members be physically present. Florida law has allowed many state agencies to conduct public meetings by "communications media technology" since 1997. The quorum half is restrictive. Statutes governing how local government bodies conduct business (like section 166.041 for cities) require a "quorum" to be "present." A long line of AG opinions, going back to opinion 83-100 in 1983, interpreted "present" to mean physically present. Without legislative or judicial change, that interpretation continued to control. So during the early COVID-19 emergency, in the absence of a special statutory carve-out or a lawful suspension of the in-person quorum requirement, a fully remote meeting could not constitute a valid quorum. The conclusion expressly invited legislative or executive emergency action to resolve the question.

Currency note

This opinion was issued in 2020. 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.

In the days following this opinion, Governor DeSantis issued an executive order suspending the in-person quorum requirement for the COVID-19 emergency, and the legislature has since revisited communications-media-technology authority. Anyone planning a remote meeting today should check the current statutory framework and any active executive orders.

Background and statutory framework

Two layers of law govern Florida public meetings. The first is the open-meetings rule: Article I, section 24(b) of the Florida Constitution requires that meetings of any "collegial public body" of a county, municipality, school district, or special district at which official business is transacted be open and noticed to the public. Section 286.011(1), Florida Statutes (Florida's Sunshine Law), repeats this requirement. Section 286.0114 requires an opportunity for public comment on certain propositions before a board or commission.

Neither the constitution nor the Sunshine Law text says that members of the public body must be physically present. They require the meeting to be "public" and "open to the public." How a meeting is conducted, where it is "held," and what counts as a "quorum" are addressed by other statutes.

The second layer is the conduct-of-business statutes. Section 166.041(4), Florida Statutes, requires that for a municipality to adopt an ordinance or resolution, "an affirmative vote of a majority of a quorum present" is needed, with a majority of members constituting a quorum. Section 125.001(1) provides that meetings of a board of county commissioners "may be held at any appropriate place in the county." None of these statutes defines "quorum" or "present."

The legislature has separately authorized specific bodies to use communications media technology for meetings:

• Section 120.52(5)(b)2 (state agencies under the Administrative Procedure Act) and Chapter 28-109, Florida Administrative Code (since 1997)
• Section 163.01 (Florida Interlocal Cooperation Act of 1969 separate legal entities)
• Section 373.079(7) (water management districts)
• Section 374.983(3) (Florida Inland Navigation District)
• Section 553.75(3) (Florida Building Commission)
• Section 1002.33(9)(p)3 (charter school governing boards)
• Section 349.04(8) (Jacksonville Transportation Authority, with the carve-out that a quorum must be physically present at the noticed location and only physically present members may vote)

Outside of those specific authorizations, prior AG opinions had interpreted the generic "quorum" / "present" language to require physical presence:

• AGO 83-100 (1983): a county could not conduct a meeting unless a quorum was physically present
• AGO 92-44 (1992): a county commissioner physically unable to attend (medical) could participate by phone if a quorum of others was physically present
• AGO 98-28 (1998): a school board member could attend electronically as long as a quorum was physically present
• AGO 2002-82 (2002): physically disabled members of a city board could vote remotely as long as a quorum was physically present
• AGO 2003-41 (2003): a board member participating by telephone could not be counted toward a quorum
• AGO 2010-34 (2010): the Coral Gables City Commission could not adopt a retirement-board ordinance saying electronic appearance counts toward a quorum, because that conflicted with section 166.041

That line of opinions used dictionary definitions: "quorum" means those "who must be present for a deliberative assembly to legally transact business" (Black's Law Dictionary, 11th ed. 2019), and "present" means "in attendance; not elsewhere" (same source). The Florida Supreme Court has also approved this dictionary-driven approach to undefined statutory terms (Lee Mem. Health Sys. v. Progressive Select Ins. Co., 260 So. 3d 1038, 1043 (Fla. 2018)).

Why the AG reached this conclusion

Attorney General Moody's analysis preserved the pre-existing line of opinions while flagging the emergency-context tension.

The Sunshine Law side was relatively easy. Public access can absolutely be afforded by teleconference or other technological means; multiple state agencies had been doing this since 1997 without incident. The constitution and chapter 286 require openness, not physical co-location.

The quorum side ran into the prior opinions. Statutes like section 166.041 use "quorum" and "present" without definition. The AG's office had been reading those terms to require physical presence for thirty-seven years. Florida courts had endorsed that reading (Berkovich v. Casa Paradiso North, Inc., 125 So. 3d 938, 941 (Fla. 4th DCA 2013): "The common usage of the term 'quorum' requires the presence of individuals."). The COVID-19 emergency was an unusual circumstance, but the AG explicitly said the emergency "do[es] not change existing law" without legislative action.

That left two options for local governments wanting to meet entirely remotely during the emergency:

1. Find a specific statute (such as section 163.01 for interlocal entities) that authorized remote-presence quorums for that body. If yes, hold the meeting under that statute.
2. Get the in-person quorum requirement "lawfully suspended" during the state of emergency. The opinion did not specify the mechanism, but the implication was an executive order under the Governor's emergency powers under chapter 252.

Even if neither path was available, public access still had to be afforded when the meeting was held, and that public access could be by teleconferencing or technology.

Common questions

Did this opinion mean local government bodies could not hold any meetings remotely during COVID-19?

The opinion did not say that. It said that under existing law, full remote meetings would only satisfy quorum requirements in two situations: (a) a specific statute authorizing remote presence for that body, or (b) a lawful suspension of the in-person quorum requirement. After the opinion was issued, Governor DeSantis used his emergency powers to do the suspension, allowing local government bodies to meet entirely remotely during the emergency.

Can a single absent member appear by phone if the rest of the body is physically present?

The line of prior opinions said yes. AGO 92-44 (member medically unable to attend) and AGO 98-28 (school board member) both permitted electronic participation as long as the in-person quorum was met. The remote member could even vote. The constraint was that the remote member could not be counted toward forming the quorum.

What about state agency meetings?

State agencies governed by chapter 120 have had communications-media-technology authority since 1997 (section 120.52(5)(b)2 and Chapter 28-109, Florida Administrative Code). Plus various specific entities (water management districts, the Florida Building Commission, charter school governing boards, etc.) have their own statutes. State agencies generally were not affected by the same uncertainty.

Did the public still have to be allowed to attend remotely?

Yes. The opinion was clear that whatever meeting format the body chose, public access had to be afforded that permits the public to attend. Public access could be by teleconference or technology. So if a city held a remote meeting under an emergency suspension of the in-person quorum, the public also had to be able to dial in or stream the meeting.

What was Governor DeSantis's role here?

Governor DeSantis sent the opinion request, which gave the AG authority to issue a formal opinion under section 16.01(3). His March 9, 2020 Executive Order No. 20-52 had declared the state of emergency. Following the opinion, the Governor used his emergency authority to suspend the in-person quorum requirement, which removed the practical bind the opinion identified.

Citations

• Art. I, § 24(b), Fla. Const.
• § 16.01(3), Fla. Stat. (AG opinion authority)
• § 120.52(5)(b)2., Fla. Stat. (state agency communications media technology)
• § 125.001(1), Fla. Stat. (county commission meeting locations)
• § 163.01, Fla. Stat. (Florida Interlocal Cooperation Act of 1969)
• § 166.041(4), Fla. Stat. (municipal quorum and adoption rules)
• § 286.011(1), Fla. Stat. (Sunshine Law)
• § 286.0114, Fla. Stat. (public comment requirement)
• §§ 349.04(8), 373.079(7), 374.983(3), 553.75(3), 1002.33(9)(p)3, Fla. Stat. (specific entity authorizations)
• Chapter 28-109, Florida Administrative Code
• AGOs 83-100, 92-44, 98-28, 2002-82, 2003-41, 2010-34
• Executive Order No. 20-52 (March 9, 2020)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/public-meeting-quorums-using-technology
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1466

Original opinion text

The Honorable Ron DeSantis
Governor
The Capitol
Tallahassee, Florida 32399-0001

Dear Governor DeSantis:

Our office has received your letter dated March 17, 2020, requesting an opinion pursuant to Section 16.01(3), Florida Statutes, in light of recent developments arising from the spread of COVID-19. On March 9, 2020, you issued Executive Order No. 20-52, declaring a state of emergency statewide and requiring Florida government officials to take necessary and timely precautions to protect their communities.

You state that, as a result of the dangers of COVID-19, public safety directives encourage citizens to engage in "social distancing" and to avoid public gatherings, where possible. As a result, your office "has been contacted by numerous county and local government bodies regarding concerns for public meetings held in light of the COVID-19 public health emergency. These entities raise issues involving Florida Statutes and Attorney General Advisory Opinion interpretations that limit the ability to hold public meetings using communications media technology."

Question Presented

Under these circumstances, you ask the following question:

Whether, and to what extent, local government bodies may utilize teleconferencing and/or other technological means to convene meetings and conduct official business, while still providing public access to those meetings?

It is my opinion under existing law that, if a quorum is required to conduct official business, local government bodies may only conduct meetings by teleconferencing or other technological means if either (1) a statute permits a quorum to be present by means other than in person, or (2) the in-person requirement for constituting a quorum is lawfully suspended during the state of emergency. If such meetings are conducted by teleconferencing or other technological means, public access must be afforded which permits the public to attend the meeting. That public access may be provided by teleconferencing or technological means.

Discussion

Article I, Section 24(b) of the Florida Constitution provides that "[a]ll meetings…of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public[.]" Florida's Sunshine Law, found in chapter 286, Florida Statutes, provides that "[a]ll meetings of any…agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution,…at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken at such meeting." § 286.011(1), Fla. Stat. (2019). Section 286.0114, Florida Statutes, also provides, with respect to certain "propositions" before a board or commission, that an opportunity for public comment must be afforded.

Though the Florida Constitution and the Sunshine Law both require that, unless exempt by law, meetings of a local government body must be "public meetings" that are "open to the public," the text of neither provision requires that members of the public body be physically present during the meeting. Nor does either provision prescribe any particular means of holding meetings. Since 1997, Florida law has allowed many state agencies to conduct public meetings, hearings and workshops by "communications media technology" in full compliance with the Sunshine Law, and they regularly do so. See § 120.52(5)(b)2., Fla. Stat. (2019); Ch. 28-109, Fla. Adm. Code. No reported judicial decision has held that meetings conducted by such means violate the Florida Constitution or the Sunshine Law. The Legislature has also, by statute, permitted certain public entities other than state agencies to conduct meetings using communications media technology.

When asked similar questions by local government bodies in the past, the Attorney General's office has made it clear that any requirement for physical presence of members derives from other law specifying that a quorum be present to lawfully conduct public business or that the meeting of a local government body be held at a place within the body's jurisdiction. See Ops. Att'y Gen. Fla. 1983-100 (1983), 1998-28 (1998), 2006-20 (2006). How a quorum is lawfully constituted, or where a meeting is "held," are questions distinct from the Sunshine Law and governed by other law. Indeed, a quorum is not required to be present for a meeting to be otherwise subject to the Sunshine Law.

Some statutes governing the conduct of business by local government bodies (such as section 166.041, Florida Statutes) specifically include the requirement of a "quorum" or that a quorum be "present" to conduct certain kinds of public business, such as the adoption of ordinances or resolutions. See § 166.041(4), Fla. Stat. (providing that, for municipalities, a majority of members constitutes a quorum and an affirmative vote of a "majority of a quorum present" is necessary to adopt an ordinance or resolution). Other statutes require that meetings be held in a place within the jurisdiction of the local government body. For example, section 125.001(1), Florida Statutes, requires that meetings of a board of county commissioners "may be held at any appropriate place in the county." These statutes have not defined the term "quorum" or what it means to be "present." Nor have they defined what it means for a meeting to be "held" in a place.

Absent any statutory definition of these terms, the Attorney General's office has, in prior opinions, relied upon the plain meanings of the terms "quorum" and "present" by resorting to legal dictionaries and dictionaries of common usage. See Op. Att'y Gen. Fla. 2010-34 n.5-6 (referring to unabridged dictionary and legal dictionary for definition of term "quorum", which included the word "present", and concluding that "a quorum requirement, in and of itself, contemplates the physical presence of the members of a board or commission at any meeting subject to the requirement."). Doing so is a universally accepted mode of interpretation repeatedly endorsed by Florida courts. See Lee Mem. Health Sys. v. Progressive Select Ins. Co., 260 So. 3d 1038, 1043 (Fla. 2018); Berkovich v. Casa Paradiso North, Inc., 125 So. 3d 938, 941 (Fla. 4th DCA 2013) ("The common usage of the term 'quorum' requires the presence of individuals.") (citing Black's Law Dictionary 1284 (8th ed.2004)).

The term "quorum" is defined as "who must be present for a deliberative assembly to legally transact business." Black's Law Dictionary (11th ed. 2019). The word "present," is defined as "in attendance; not elsewhere." Black's Law Dictionary (11th ed. 2019); see also Webster's Third New International Dictionary Unabridged 1793 (2002 ed.) (defining "present" as "being before, beside, with, or in the same place as someone or something .").

Thus, in the absence of a statute to the contrary, the Attorney General's office historically has taken a conservative approach, out of concern for the validity of actions taken by the public body, concluding that any statutory quorum requirement to conduct public business requires the quorum of members to be physically present and that members present by electronic means could not count toward establishing the quorum. A long line of opinions by my predecessors contain conclusions to that effect.

For example, in Attorney General Opinion 83-100, Attorney General Smith concluded that a county could not conduct a meeting unless members constituting a quorum were physically present (and, even then, that a physically absent member could not participate by telephone). Op. Atty' Gen. Fla. 83-100 (1983). In Attorney General Opinion 92-44, Attorney General Butterworth concluded that a county commissioner physically unable to attend a meeting because of medical treatment could participate and vote in commission meetings where a quorum of other commissioners was physically present. Op. Att'y Gen. Fla. 92-44 (1992). In Attorney General Opinion 98-28, Attorney General Butterworth concluded that a school board member could attend a meeting by electronic means, so long as a quorum was physically present at the meeting site. Op. Att'y Gen. Fla. 98-28. In Attorney General Opinion 2002-82, Attorney General Doran concluded that physically disabled members of a city board could participate and vote on matters as long as a quorum was physically present. Op. Att'y Gen. Fla. 2002-82 (2002). In Attorney General Opinion 2003-41, Attorney General Crist concluded that a member of a city human rights board who was physically absent from a board meeting but participated by telephone conference could not be counted toward the presence of a quorum. Op. Att'y Gen. Fla. 2003-41 (2003). And in Attorney General Opinion 2010-34, Attorney General McCollum concluded that the Coral Gables City Commission could not adopt an ordinance for the city's retirement board declaring that the requirements to create a quorum would be met if members of the board appeared via electronic means, because doing so would conflict with the statutory requirement in section 166.041, Florida Statutes that a quorum be present. Op. Att'y Gen. Fla. 2010-34 (2010).

Conclusion

The nature, extent, and potential duration of the current emergency involving COVID-19 present unique circumstances. However, without legislative action, they do not change existing law. It is my opinion that, unless and until legislatively or judicially determined otherwise, if a quorum is required to conduct official business, local government bodies may only conduct meetings by teleconferencing or other technological means if either a statute permits a quorum to be present by means other than in-person, or the in-person requirement for constituting a quorum is lawfully suspended during the state of emergency.

Sincerely,

Ashley Moody
Attorney General