Could Tega Cay council members join a public meeting by telephone without a separate ordinance?

Plain-English summary

Tega Cay's city manager submitted a proposed procedure for council meetings attended by some members by telephone. It required a physical quorum and presiding officer at the meeting place, two-way audibility among remote members and those in the room, public audibility of council exchanges, and a record of remote members' comments, motions, and votes. The Attorney General concluded that the described procedure would comply with South Carolina's Freedom of Information Act as he understood it in 2005.

The statute's meeting definition included a public body's convening by electronic equipment. The AG cited earlier opinions requiring public access, notice, and minutes for telephone meetings. He did not see a need for an ordinance merely to adopt the described procedure, though he suggested consulting the city attorney about the local situation. He also said an ordinance could not narrow FOIA's requirements.

Currency note

This opinion was issued in 2005. 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

Could a council member participate by phone under the procedure Tega Cay described?
The AG said the described procedure complied with FOIA, including a physical quorum, public access to the conversation, notice, and minutes.

Did Tega Cay need an ordinance to hold such a meeting?
The opinion said a separate ordinance did not appear necessary for the procedure submitted. It left the city's particular ordinance question to consultation with its attorney.

Could an ordinance override the state's open-meeting rules?
No. The letter expressly said an ordinance could not limit FOIA.

Background and statutory framework

The opinion applied FOIA's definition of a meeting, which covered electronic convening, and earlier AG guidance on public attendance, notice, and minutes for telephone calls involving a public body.

Citations and references

The opinion quoted the FOIA meeting definition and discussed its openness, notice, and minutes provisions.

Official title

Questioning whether an ordinance setting forth the procedures for a telephonic meeting may be enacted.

Requester

Grant W. Duffield, City Manager, City of Tega Cay

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-25-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05august-25-Duffield.pdf

Original opinion text

The 51a1e of South Carolina

OFFICE OF THE ATTOR?\EY GE!\ERAL
HENRY McM;..STrn
AITOR>\;£\' GE:\ERAL

August 25, 2005

Grant W. Duffield, City Manager
City of Tega Cay
Post Office Box 3399
Tega Cay, South Carolina 29708
Dear Mr. Duffield:
In a letter to this office you questioned whether an ordinance setting forth the procedures for a telephonic meeting may be enacted. As referenced by you, 1. The City council may hold a duly called council meeting when a council member( s) attends such meeting by telephone conference ca IL provided that all of the following conditions are met: a. A quorum of the council members are physically present at the meeting place, and remain physically present throughout the meeting: and b. The membens i attending by teleconference can hear any and all comments made by the public staff and other rnuncil members (whether attending in person or tflephonically). at such meeting. c. Each of the members of public. staff. and other council members
!whether attending in person or telephonically1 cm hear the comments. motions and vote(s) ofthemember(s) attending such meeting telephonicaily. d. The individual presiding over the meeting is physically present during the meeting.

e.
Other than establishing the telephone connection:-. there shall he no communications bet-':eer, the member( s) attending by telephone and other members of counciL ur:.le~~ rnch cornmunic2tiori i~ pan of the meeting. and can be heard hy the mt'rtil-ler:: of the public in atiendance.

Mr. Duffield
Page2
August 25, 2005

f.

All of the comments, motions, and votes of the member(s) attending telephonically must be capable of being recorded in the minutes of the meeting. 2.

i

I

If such a meeting is held (where a member( s) attends telephonically pursuant to the above conditions), the member(s) attending telephonically shall be considered present at the meeting and shall have all of the powers held by a council member at such meeting.

Pursuant to S.C. Code Ann. § 30-4-20( d) for purposes of this State's Freedom of Information Act (FOIA), a "meeting" is defined as " ... the convening of a quorum of the constituent membership of a public body, whether corporal or by means of electronic equipment, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory power." (emphasis added). A prior opinion of this office dated November 17, 1980 stated that
... any telephonic meeting which you have must comply with all the provisions of the State's Freedom of Information Act. This would include the provision set forth in Section 30-4-60 of the Code to the effect that all meetings of the Council shall be open to the public. It would also include the requirements of giving notice of your meetings and keeping minutes of your meeting, which requirements are set forth in Section 30-4-80 and 30-4-90 of the 1976 Code of Laws as amended.

I
bt,

r
I

The opinion further states that
... an electronic or conference call meeting could be structured to comply with all the requirements of the Freedom of Information Act Jn order to comply with the openness requirement and to provide a place \Vhereir; the meeting could be attended by interested members of the public, I would recommend your placing a speaker telephone in a conference room or other gathering place in the Commission offices which would allow several persons in a room to monitor what was taking place in the meeting and to communicate with Commission members as needed. Another opinion of this office dated March 25. 198 l commented that " ... meetings by means of telephone conference calls should be open to the public and that sufficient notice should be given as required by the Act. Minutes of these telephonic meetings must also be kept." The opinion also indicated that there must be compliance with notice requirements of the FOIA. Consistent with such, it is my opinion that the procedure outlined above for telephonic meetings by the city council would comply with the FOIA As to your question regarding whether an ordinance could be enacted adopting such requirements. I am uncertain as to why the enactment of an ordinance would be necessary or desirable. If the procedures outlined by you were adopted for telephonic meetings, in my opinion there would be sufficient compliance with the FOIA and it would

Mr. Duffield
Page 3
August 25, 2005

not appear that the enactment of a separate ordinance outlining such would be necessary. In any event, an ordinance could not limit the FOIA. However. you may wish to consult with your city attorney regarding the necessity of any ordinance in your particular situation. With kind regards, I am, Sincerely,

ciJof!/~-

I
I

Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

'.,-;'&c/t g~ 'c~)

I

Robert D. Cook
Assistant Deputy Attorney General

~
I