On April 9, 2022, Governor Hochul signed legislation allowing videoconferencing and remote participation in public meetings until July 1, 2024. This legislation was signed into law as Chapter 56 of the Laws of 2022 relating to the New York State budget for the 2022-2023 state fiscal year. The legislation was a last-minute addition to the New York State Budget and is located in Part WW of A.9006. The legislation includes a 60-day window for entities subject to the Open Meetings Law to operate on a virtual basis without complying with the new legislation. Specifically, until June 8, 2022, public bodies can meet 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. This is the same provision that has been in effect under Chapter 1 of the Laws of 2022 and Sections 1 and 2 of Part E of Chapter 417 of the Laws of 2021. After June 8, 2022, the legislation requires public bodies to follow new procedures and requirements for meetings held via videoconference under certain circumstances. The remote meeting authorization applicable after June 8, 2022 is significantly different than what was authorized in Executive Order 202.1 and Chapter 1 of the Laws of 2022. After June 8, 2022, public bodies may conduct meetings by videoconference until July 1, 2024, subject to a number of new requirements, including, among other things, that a quorum of a public body’s members be present in person at one or more physical locations where the public can attend, and the public body must adopt a local law or resolution authorizing the use of videoconferencing and setting forth other procedures to enable members of boards or commissions to appear virtually.
After June 8, 2022, the public body may conduct a meeting via videoconference if it so chooses, provided that a quorum of the public body is present in the same physical location or locations where the public can attend, and the following criteria are met:
- The governing body has adopted a local law, or the public body has adopted a resolution, authorizing the use of videoconferencing.
- The public body has established written procedures governing member and public attendance. Such written procedures must be posted on the public website of the public body.
- Members of the public body must be physically present at the public meeting, unless such member is unable to be physically present at the physical location of the meeting due to extraordinary circumstances. A list of such extraordinary circumstances must be set forth in the written procedures governing member and public attendance at a virtual meeting. These extraordinary circumstances shall include, but are not limited to, disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the members from physically attending a meeting.
- Except for permitted Executive Sessions, the public body must ensure that members of the public body can be heard, seen, and identified while the meeting is being conducted virtually. This would prohibit any member of the public body from attending a meeting via telephone.
- The minutes of any meeting involving videoconferencing shall state whether public body members participated remotely and shall be made available to the public.
- The public notice for the meeting must inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available and shall identify the physical location of the meeting.
- The virtual meeting must be recorded, and such recordings must be posted or linked on the public website of the public body within five (5) business days following the meeting and remain available for at least five (5) years.
- The public body shall provide an opportunity for members of the public to view such meeting via video, and to participate in proceedings via videoconference in real time where public comment or participation is authorized, and shall ensure videoconferencing authorizes the same public participation or testimony as in-person participation.
- A local public body electing to utilize videoconferencing to conduct its meetings must maintain an official website.
If the public body can meet the criteria above, it may allow members of the public body to attend meetings via videoconference. A board member who appears virtually in a non-public location is free to participate in the meeting and vote on agenda items but cannot be counted towards the required quorum of the board. Board members present in-person in any physical location shall be counted towards the required quorum. A physical location is any physical location for the meeting where the public can attend in-person. A physical location also includes any location from which a board member is participating virtually, and which location has been set forth in the public notice and the public has the right to attend. If a board member wants to attend a meeting virtually from a public location and is willing to give notice of their location and invite the public to attend the same physical location as said board member, then the public body does not have to comply with the new requirements of the Open Meetings Law set forth in Section 103-a.
The in-person participation requirements set forth in the legislation shall not apply during a state disaster emergency declared by the Governor, or a local state of emergency, if the public body determines that the circumstances necessitating the emergency declaration would affect or impair the ability of the public body to hold an in-person meeting.
The legislation also requires that meetings of any public body that are broadcast or that use videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with 1990 Americans with Disabilities Act (ADA), as amended, and corresponding guidelines. The term “disability” shall have the same meaning as defined in Section 292 of the Executive Law. While it is unclear at this time what is expected with regard to ADA compliance, below is a list of technologies that a public body may utilize to achieve compliance:
- Hire a sign language interpreter.
- Add captions.
- Add audio description.
- Use enhanced audio equipment.
- Confirm that the platform used is compatible with assistive technologies used by disabled persons such as screen readers for blind persons, screen enlargement applications, closed-captioning, cognitive aids including computer devices, etc.
- Ensure compatibility with a Video Relay Service, Video Remote Interpreting, or Captioned Telephone.
Additionally, Chapter 56 requires the Committee on Open Government to issue a report by January 1, 2023 to the Governor and other government bodies concerning the application and implementation of the legislation and any further recommendations governing the use of videoconferencing by public bodies to conduct meetings.
In conclusion, if a public body is interested in granting members the option of attending a meeting virtually from a non-public location, the public body must first adopt a local law or a resolution authorizing the use of videoconferencing for itself and its committees or subcommittees, or specifying that each committee or subcommittee may make its own determination. The public body must then prepare written procedures governing member and public attendance. Regardless of whether the public body authorizes the use of videoconferencing to allow members to attend virtually, every public meeting must be held in a physical location or locations with a quorum of the board physically present.
The Committee on Open Government has issued guidance regarding the recent videoconferencing amendments to the Open Meetings Law. This guidance is available here.
For questions on the Open Meetings Law and holding public meetings using virtual technology, or any other inquiries regarding municipal issues, please contact Eric L. Gordon or Drew Victoria Gamils or any other attorney in our Municipal Law Practice Group.