During the COVID-19 Pandemic, and by Executive Order, virtual meetings of public bodies were permitted as an exception to the in-person meeting requirements ordinarily imposed by New York State’s Public Officers Law.
In 2022, Governor Kathy Hochul signed into law Chapter 56 of the Laws of 2022 which, in part, amended the law to make permanent the expanded use of videoconferencing by public bodies to conduct open meetings. Initially set to expire in July of 2024, New York State’s Public Officers Law § 103-a, which governs videoconferencing by public bodies, has been extended and will now expire on July 1, 2026.
PUBLIC OFFICERS LAW § 103-a
New York law permits a quorum of a public body to convene: (i) in person (Pub. Off. Law § 103); (ii) via videoconferencing with advance notice with members of the public allowed at the remote location (Pub. Off. Law § 104(4); (iii) via videoconferencing in extraordinary circumstances, without advance notice and without the public attending the remote location. (Pub. Off. Law § 103-a); or (iv) a combination of these three methods.
After COVID-19, Public Officers Law § 103-a was adopted with the recognition both that it is not a good idea to have others present while one is sick and sometimes advance public notice cannot be provided of alternate attendance. Accordingly, videoconferencing is permitted to conduct meetings, provided that a minimum number of members of the public body are present to fulfill the public body’s quorum requirement in the same physical location, or locations where public can attend. See Pub. Off. Law § 103-a(2).
Administrative Conditions Precedent
A “local public body” means a public corporation, a political subdivision or a committee or subcommittee or other similar body of the entity, or any entity for which a quorum is required in order to hold a meeting. See Pub. Off. Law § 103-a(1).
Videoconferencing is permitted only if the following criteria are met in advance:
(a) the governing board of a county, city, town or village has adopted a local law, or a public body has adopted a resolution, following a public hearing authorizing the use of videoconferencing:
(i) for itself and its committees or subcommittees; or
(ii) specifying that each committee or subcommittee may make its own determination;
(iii) provided however, that each community board in a city with a population of one million or more will make its own determination;
(b) the public body has established written procedures governing member and public attendance consistent with this section that are conspicuously posted on the public body’s website. See generally Pub. Off. Law § 103-a(2).
A public body electing to utilize videoconferencing to conduct meetings must maintain an official website. See Pub. Off. Law § 103-a(2)(i).
Notice Requirements for Meetings by Video
- If videoconferencing pursuant to Pub. Off. Law § 103-a is used to conduct a meeting, the public notice must inform the public:
- that videoconferencing will be used;
- where the public can view and/or participate in the meeting;
- where required documents and records will be posted or available; and
- the physical location for the meeting where the public can attend.
See Pub. Off. Law § 103-a(2)(f).
Note that, if the member cannot meet the “extraordinary circumstances” requirement to virtually attend a meeting pursuant to Pub. Off. Law § 103-a, the member can participate remotely pursuant to Pub. Off. Law § 104(4). However, in that event, the notice of the meeting must indicate that members of the public body will be participating via videoconferencing technology and must also identify the locations from which the members will be participating. The notice must state that the public has the right to attend the meeting at any of the meeting locations.
Presence Requirement Pursuant to Pub. Off. Law § 103-a
A public body may use videoconferencing, provided that a minimum number of members are present to fulfill the public body’s quorum requirement in the same physical location or locations where the public can attend. See Pub. Off. Law § 103-a(2). For example, for a five-member board, only two can attend remotely for extraordinary circumstances.
Members of the public body must be physically present at any meeting unless a member is unable to be physically present at the meeting location due to extraordinary circumstances. See Pub. Off. Law § 103-a(2)(c).
“Extraordinary circumstances” must be defined in the municipality’s resolution and written procedures adopted set forth above. They include illness, disability, caregiving responsibilities, or other significant or unexpected factors or events that might preclude the member’s physical participation in the meeting.
Miscellaneous Requirements
Each meeting by videoconferencing must be recorded, with the recordings posted or linked on the municipality’s website of the public body within five business days following the meeting. It must remain available for a minimum of five years thereafter. See Pub. Off. Law § 103-a(2)(g).
Videoconferencing must be compliant to permit access to those individuals of the public with disabilities consistent with, among other laws, the American with Disabilities Act (ADA). See Pub. Off. Law § 103-a(5).
Except in the case of 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 including, but not limited to, any motions, proposals, resolutions or other matters formally discussed or voted upon. See Pub. Off. Law § 103-a(2)(d). Put simply, the camera must be kept on at all times.
CONCLUSION
Public bodies may utilize videoconferencing to conduct public meetings of their boards and committees if they have first adopted a resolution or local law after a public hearing and have also established written procedures concerning videoconferencing. Videoconferencing may be used provided that, at a minimum, a quorum of the public body are physically present in the same location where the public can attend.
If your public body needs guidance regarding the implementation, compliance with, or enhancement of videoconferencing procedures, please feel free to contact Robert C. Zitt, Esq., or one of our other Municipal Law attorneys at Keane & Beane, P.C.
