Validity of decisions taken by public bodies through conference calls

Following the growing coronavirus outbreak which continues to upend life across the globe, face-to-face meetings of the Board of many public bodies and organizations are no longer an option.

Unless there is no any specific law or regulation governing the meetings of the public body or organization concerned, the question which arises is whether an online meeting through teleconference or other electronic means would be a validly held meeting. The question is of utmost significance, since a defect in the process of convening or holding the meeting may invalidate all decisions adopted in the said meeting.

The matter is governed by the provisions of the General Principles of Administrative Law of 1999 Law 158 (I)/1999 (the Law).  In particular, as provided in section 20(1) of the said Law, “for a public body to be legal, it must be composed of all persons defined by law” and, in accordance with the provisions of section 21(1) “the public body shall meet with legal composition. It is not legally composed if a person who is not authorized by law is present at the meeting". Further, Article 23 (1) expressly provides that "In order for a meeting to be lawful, the public body must have a quorum, ie the lower number of members required by law to be present at the meeting" and, pursuant to subsection (2) of the same article, "unless otherwise provided by law, a quorum shall exist where the majority of all members are present".

It is obvious from the wording of the above provisions of the Law that the legal composition and validity of the meetings of the public body is a prerequisite for the legal composition of that body. The legality of the composition of the body is inseparable linked to the physical presence of its members at the meeting, in accordance with the above-mentioned provisions, unless otherwise provided by a specific legislation.

Against this background, it is unclear and doubtful if the requirement for “presence” could be taken to also mean “online presence”.  Nowhere in the provisions of the Law do we identify any provision that would allow a member to attend an online meeting through a conference call. In fact, there is no exception in cases of emergency situations. Therefore, it is arguable that a decision made in any meeting of the Board of a public body via teleconference may be invalid.  It remains to be seen whether the development of the epidemic would be able to justify online meetings of Boards of public bodies or organisations and, at this point in time, the situation remains obscure.  

For more information or legal advice, please contact your Harris Kyriakides partner or any of our lawyers.