You asked if the law allows members of state and local rule making bodies (i. e. , legislative bodies, boards, and commissions) to vote by telephone. If so, you wanted to know if any actually allow telephone voting. The Office of Legislative Research cannot give legal opinions and you should not regard this memo as one.

SUMMARY

The law does not explicitly state whether telephone voting is allowed. However, the Freedom of Information Act (FOIA) allows public agencies to hold meetings, and thus arguably vote, by electronic means. FOIA requires public agencies to conduct open meetings unless the topic for discussion meets the conditions for holding an executive session, a private meeting. State boards, commissions, and committees are public agencies and thus subject to FOIA.

In the only opinion it has issued on the subject, the Freedom of Information Commission advised those that want to conduct business over the phone to make sure that “the public has access to the entire proceedings taking place during the course of a meeting. ” The public attending the meeting “must be able to hear and identify adequately all participants in the proceedings, including their individual remarks and votes. ”

While telephone voting appears permissible, the issue of whether to allow it rests with individual agencies. The House and Senate rules allow only machine voting, which limits members to cast their votes in person. The pattern among state boards and commissions varies. Eleven of the 20 boards and commissions we contacted allow their members to vote by phone, and eight of these expressly allow telephone voting. The licensing boards within the Department of Consumer Protection (DCP) also allow telephone voting.

This report discusses the law and the extent to which telephone voting is practiced at the state level. We will prepare a separate report on telephoning voting at the local level.

LEGALITY OF TELEPHONE VOTING

The law tacitly allows legislative bodies, commissions, and boards to take votes over the telephone during a public meeting. By law, these entities are “public agencies” and must comply with FOIA and its public meeting requirements.

While the statutory definition of “public meeting” does not expressly authorize telephone voting, it recognizes situations when it can happen:

A public agency that wants to allow telephone voting must still open the meeting to the public. “Consequently, any telephonic meeting, or meeting by other electronic equipment, of a public agency must still be ‘open to the public,’ within the meaning of CGS § 1-21” (now, codified at CGS § 1-225(a)), the Freedom of Information Commission opinioned (Advisory Opinion 41, April 1, 1980, Attachment 1).

In order to comply with this statute, the agency must conduct the meeting in such a way that every person attending it can “observe all of the discussions and actions transpiring at the meeting,” the commission stated. The commission advises that, at minimum:

TELEPHONE VOTING AT THE STATE LEVEL

State agencies’ policies regarding telephone voting vary. Some agencies’ rules specifically prescribe how votes must be taken, which means the agency can take votes over the phone only if its rules allow it. The rules governing other agencies are silent on how votes must be taken, and these agencies seem to construe that silence differently.

Legislature

The legislature’s voting rules illustrate these points. The House and Senate rules allow only roll call machine voting, and thus implicitly ban telephone and other forms of voting (House Rule 39 and Senate Rule 24, respectively). The rules governing voting in legislative committees are silent, which arguably suggests that committee cochairmen may allow it if they so choose. But no committee currently allows or appears to have ever allowed members to vote by phone.

Commissions and Boards

We contacted 20 boards and commissions and the Department of Consumer Protection (DCP), which houses various professional licensing boards, to determine agency practice regarding telephone voting.

Eleven of the boards and commissions we contacted allow telephone voting. Of these, eight have bylaws that explicitly allow this practice. The bylaws for the three other boards and commissions are silent on the matter. DCP reported that its boards and commissions allow telephone voting in meetings, provided the public was properly notified.

The bylaws for the boards and commissions that do not practice telephone voting are either silent or, as with respect to the Commission on Children, require members to be present at meetings in order to vote. Some reported that they had never had the occasion to consider this type of voting. Others reported that they would not take telephone votes because their bylaws did not explicitly allow it.

Table 1 lists the boards and commissions that responded to our inquiry and indicates whether they allow telephone voting.

Table 1: Comparison of Selected State Boards and Commission Regarding Telephone Voting

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