On March 13, 2020, Governor Cuomo issued Executive Order 202.1 (“EO 202.1”), to temporarily suspend the Open Meetings Law (Article 7 of the Public Officers Law) to allow any public body to meet and take action without permitting in-person access to the meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.
With COVID-19 upon us, it is increasingly difficult for public bodies to conduct business as usual. Nevertheless, it is crucial that public bodies utilize technology to continue to safely perform essential operations, make necessary decisions and hold regularly scheduled meetings and hearings. Our firm has issued prior Legal Alerts on the topic of public meetings in a virtual world. We hope you find this Q&A of frequently asked question regarding Open Meetings Law (“OML”) compliance helpful for schedule and “attending” public meetings during the COVID-19 Pandemic. Please send any questions to Nicholas M. Ward-Willis or Drew Victoria GamilsWe will be updating this Alert as necessary.
- Must all board members attend a public meeting using the same method?
No, in theory, one member of the board could attend in person (but in person attendance by the public would be in violation of EO 202.10, discussed below in Question #9), another over the phone and the rest via videoconferencing. A quorum can be established using a combination of methods.
- Can board members participate via videoconferencing and the public by phone?
Yes, EO 202.1 does not require both the public and the board to attend via the same medium, so long as the public has the opportunity to view or listen to the meeting.
- Can the public demand to attend the videoconferencing location?
No. EO 202.1 allows public bodies to meet and take action without permitting public in-person access to meetings. It is our interpretation that EO 202.1 therefore suspends the requirement[1] that the public body provide advance notice and allow the public to attend at any of the remote meeting locations.
- Must the location of each board member be announced?
No. Board members do not have to announce their location as the public is not permitted to attend the meeting or any individual meeting location in-person.
- Must board members videoconference or call-in to a virtual meeting from a location within the municipality or school district?
No. Board members can videoconference or call-in to a virtual meeting from anywhere.
- Must the board convene in public session before going into executive session?
Yes, EO 202.1 did not relax any requirements with respect to Executive Sessions. If the board wants go into an executive session, a board member must make a motion during an open meeting to enter into Executive Session. The motion must identify generally the subject or subjects to be considered. If a board desires to go into executive session during a virtual meeting, the board must have the technical capability to make a motion to go into executive session before the viewing or listening public, go into executive session so that the public can no longer hear and/or view the meeting (off camera/off the phone), and then reconvene in public session. It is important to consult with technical staff to understand the capabilities of the conferencing service used.
- Can votes be taken over the phone or videoconference?
Yes. If a quorum is present, board members may vote and take action on any agenda item. A quorum is established by a majority of board members participating via telephone or videoconference. For clarity of the record, roll call voting is recommended.
- Does the public have to be allowed to speak at a public meeting?
No. There is no requirement in the Open Meetings Law that the public be allowed to speak at a public meeting (but see public hearing discussion below). If a board has an adopted policy or even an informal practice of allowing “public comment,” if the board does not intend or is not able to allow public comment, the board should take a vote to suspend its rules or normal practice of allowing public comment. The board may wish to provide notice to the public that public comment will not be allowed and provide an alternative means to receive comments, such as emailing comments to a designated individual (any emailed comment should be read at the meeting).
- Can a public hearing be held via telephone or videoconferencing?
Yes. EO 202.1 allows meetings to take place without permitting in public in-person access to meetings. A public hearing is a type of meeting under the Open Meetings Law. There is no separate state statute provision that requires public hearings to be held in person. Therefore, EO 202.1 also allows boards to hold public hearings remotely. Such meetings may be held via conference call, videoconferencing or similar service, however the public must be able to listen to or view the meeting and participate in the public hearing.
Videoconferencing is the best option for boards to use to conduct public hearings as it provides a virtual “meeting place” for board members and the public. There are plenty of remote conferencing services that boards can utilize, such as Zoom, WebEx or GoToMeeting. Many of these combine videoconferencing, chat capabilities, and mobile access. The videoconference or conference call must be recorded and a transcript must be provided at a later date.
Pursuant to Governor Cuomo’s Executive Order 202.10, issued on March 23, 2020, all non-essential gatherings of individuals of any size for any reason are canceled or postponed at this time. It is our interpretation that the Governor’s mandate prohibits municipal boards from holding non-essential meetings in-person. We consider public hearings to be non-essential, therefore, board members and any member of the public are barred from gathering to conduct or attend a meeting.
- What is meant by a Transcript?
EO 202.1 does not provide clarity whether a full stenographic transcript, a meeting summary, an abstract or minutes need to be provided to satisfy this requirement. However, the Governor’s office has advised that the intent is to prepare a “word for word” transcript. The transcript does not have to be prepared by a stenographer or professional transcriptionist; the public body can be prepared by an employee or electronically by the remote access service.
- When must the Transcript be provided?
EO 202.1 states the transcript must be provided at a later date, which is not defined. We are hopeful that guidance will be provided. However, as a practical matter, the obligation to provide the transcript must be balanced with the need to provide municipal services with a reduced workforce and limited resources. The transcript requirement does not replace the requirement to provide minutes within two (2) weeks of a meeting (OML Section 105).
- What must be provided in the public notice?
The Notice of Meeting should provide the following information:
(a) Provide the date and time of the meeting;
(b) State in-person attendance will NOT be permitted;
(c) Provide the conference call number or videoconference link;
(d) If applicable, explain how the public can submit comments;
(e) State that the conference call or videoconference will be recorded and a transcript of the meeting will be made available at a later date; and
(f) If a meeting will be streamed live over the internet, the public notice for the meeting shall inform the public of the internet address of the website streaming such meeting.
The meeting “call in” information in the notice should also be provided on any required public notice mailing distributed to residents and property owners in connection with a land use application.
Sample notice language is attached hereto. The board utilizing the sample language is holding its meeting via videoconference on Zoom. Additional instructions explaining how the public can access the meeting should also be provided on the posted agenda. Sample instructional language is attached.
The type of meeting may necessitate a different notice format and may call for additional information in the notice. Please consult our office to help create the appropriate notice for your meeting.
- How can the public participate in a public hearing?
Interested members of the public can provide comments by calling in to the remote meeting (whether phone or video, if audio is enabled) or utilizing available chat functions on the videoconferencing program. The public body should also allow the public to submit comments via email before and during the meeting to a designated individual who will track the comments and read them into the record.
The board should consider leaving a public hearing open for written comment for number of days following the close of the virtual public hearing to provide additional opportunity for the public to submit questions. The determination to leave the public hearing open should be decided on a case by case basis depending on the circumstances of the particular matter that is before the board, including its history.
If a member of the public comments during the virtual meeting the board can ask the individual to identify themselves with name and address, if they wish to do so (In accordance with Committee on Open Government Advisory Opinions, meeting attendees cannot be compelled to identify themselves).
- How can applicants participate?
Level of participation depends on whether the public body proceeds via telephone conference call or videoconferencing. Some videoconferencing services allow participants to upload and share documents with everyone in the virtual meeting. Applicants could utilize this tool to give their presentations to the board. At a minimum, the public body should make sure that all application materials are available online to ensure members of the public have an opportunity to view the application.
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Municipal Law Practice Group with questions regarding specific situations. Because of the frequent developments, you should consult counsel regarding specific questions.
For questions on the Open Meetings Law and holding public meetings using virtual technology, or any other inquiries regarding municipal issues please contact Nicholas M. Ward-Willis, Eric L. Gordon, Jennifer Gray or Drew Victoria Gamils or any other attorney in our Municipal Law Practice Group.
[1]Section 104(4) of the Open Meetings Law, provides “if videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.”
NOTICE OF HEARING ON APPLICATION
A Public Hearing on [IDENTIFY APPLICATION] will be held before the [IDENTIFY THE BOARD] on [INSERT MEETING DATE] at [INSERT MEETING TIME]
Due to public health and safety concerns related to COVID-19, the [IDENTIFY THE BOARD] will not be meeting in-person. In accordance with the Governor’s Executive Order 202.1, the [INSERT MEETING DATE] [INSERT BOARD] meeting will be held via videoconferencing, and a transcript will be provided at a later date. The public will have an opportunity to see and hear the meeting live and provide comments.
The public can watch the live meeting on Cable TV, online from the Public Meetings link on the [NAME MUNICIPALITY]’s website [INSERT WEBSITE LINK], and through the Zoom App. If any interested members of the public would like to provide comments on an application, comments can be called in during the meeting at [INSERT MEETING CALL IN NUMBER], [INSERT MEETING ID], [INSERT MEETING PASSWORD] or provided through the written chat section of the Zoom meeting. Comments can also be provided via email before and during the meeting to [NAME AND TITLE OF INDIVIDUAL] at [EMAIL ADDRESS]. Please check the meeting Agenda posted on the website for further instructions to access the virtual meeting and for updated information.
Plans and other materials associated with the proposed application may be reviewed and downloaded via [PROVIDE INSTRUCTIONS TO PUBLIC EXPLAINING HOW TO ACCESS AGENDA]
Dated:
AGENDA NOTICE
ANNOUNCEMENT: Due to public health and safety concerns related to COVID-19, the [IDENTIFY THE BOARD] will not be meeting in-person. In accordance with the Governor’s Executive Order 202.1, the [INSERT MEETING DATE] [INSERT BOARD] meeting will be held via videoconferencing, and a transcript will be provided at a later date. The public will have an opportunity to see and hear the meeting live and provide comments.
The public can watch the live meeting on Cable TV, online from the Public Meetings link on the [NAME MUNICIPALITY]’s website [INSERT WEBSITE LINK], and through the Zoom App. If any interested members of the public would like to provide comments on an application, comments can be called in during the meeting at [INSERT MEETING CALL IN NUMBER], [INSERT MEETING ID], [INSERT MEETING PASSWORD] or provided through the written chat section of the Zoom meeting. Comments can also be provided via email before and during the meeting to [NAME AND TITLE OF INDIVIDUAL] at [EMAIL ADDRESS]. Please check the meeting Agenda posted on the website for further instructions to access the virtual meeting and for updated information.
INSTRUCTIONS TO ACCESS THE VIRTUAL MEETING: If you have a computer, tablet or smartphone, you can register, log in and see the video and hear the audio of the live session. You can access the Zoom meeting at [INSERT LINK] and clicking on “Join a Meeting”, and enter [INSERT MEETING ID and PASSWORD]. You can also call in to the ZOOM meeting at [INSERT DIAL-IN INSTRUCTIONS].
On the evening of [MEETING DATE], 5 minutes before [MEETING TIME]., log in with your computer, smartphone or telephone. You will be placed on hold until the meeting starts. Questions about accessing the Zoom videoconference should be emailed to [PROVIDE CONTACT INFORMATION].
