Municipalities are grappling with the COVID-19 virus and how to conduct business and comply with the Open Meetings Law (“OML”). The law was not enacted with a scenario like COVID-19 in mind and recent experiences with natural disasters and other catastrophes only offer some guidance. Municipalities must work within the confines of the existing law and apply common sense and practical realities when balancing compliance with the OML and public health and safety. The public’s health is paramount in this consideration. Any deviation from past practices and the strict requirements of the OML should be stated on the Record. We have set forth below some practical considerations. Note that this is an evolving issue and this Legal Alert is current as of the afternoon of March 13, 2020.
Governor’s Executive Order Regarding The Open Meetings Law
Governor Cuomo issued Executive Order 202.1 on March 13, 2020, continuing temporary suspension and modification of laws relating to the COVID-19 emergency. This Executive Order, among other things, temporarily suspends Article 7 of the Public Officers Law through April 11, 2020 to permit any public body to meet and take such actions authorized by law without permitting public in-person access to meetings. Under the Executive Order, such meetings may be held remotely by conference call or similar service which includes, but is not limited to, video-conferencing. However, the public must have the ability to view or listen to such proceedings and such meetings must be recorded and later transcribed.
Exclusion of the Public, Conference Call Meetings and Video-conferencing
Thus, the Governor’s Order allows a board to meet:
- In person at a public location, as it regularly does under the OML.
- In-person at a public location, with some or all of the members attending via video-conferencing and in-person attendance allowed at all locations where video-conferencing is occurring as well as at the public location, as permitted under the OML. Note, the benefit of proceeding in this manner is that it is currently permitted by the OML and no transcript is required to be made.
- By conference call, with no in-person location, but the public must be able to listen in to the conference call, which must be recorded and a transcript provided at a later date.
- By video-conferencing, with no in-person location, but the public must be able to view the video-conference online, which must be recorded and a transcript provided at a later date.
The Notice of Meeting for option 2 must provide the location of any member who is attending via video-conferencing and state the public can attend at that location.
The Notice of Meeting for options 3 and 4 should a) state in-person attendance will NOT be permitted; b) provide the conference call number or video-conference link; and c) state that the conference call or video-conference will be recorded and a transcript of the meeting will be made available at a later date.
Practical Considerations
We have set forth below some comments and “best practices” for board’s to consider in light of the Executive Order and note that these must be evaluated on a case by case basis:
- A quorum can be achieved when board members attend a meeting in-person, by conference call, by video-conferencing or a combination thereof.
- It is prudent that at the beginning of the meeting for the member who is attending via conference call or video-conference to identify where they are conferencing from and identify if anyone else is present in the room (or state that no one is).
- The board can ask attendees to identify themselves, if they wish to do so (meeting attendees cannot be compelled to identify themselves).
- If an in-person meeting location is not provided, the board must provide a transcript of the meeting at a later date. Unfortunately, the Executive Order does not appear to allow an abstract, summary or minutes of the meeting to be made to satisfy the transcript requirement. The Order does not specify a “full” or “partial” transcript. We suggest that if a full transcript can be readily produced, that be done. Otherwise, a summary should be prepared and as the recording will be preserved in accordance with the Records Retention Act, that a more complete transcript can be made at a later date.
- In accordance with social distancing recommendations, for any in-person meeting, chairs can be set up in meeting rooms six feet apart from each other.
- The board has the discretion to allow applicants or members of the public to appear via conference call or video-conferencing, as the “in-person” requirements of the OML only applies to the board members.
- Consider having a visitor’s log which asks that attendees of the meeting (or visitor’s to the municipal building) voluntarily provide their name, conference call number and email address so that in the event the municipality learns through publicly available information or through self-reporting, that an attendee has been identified with having COVID-19, notification can be provided to those attendees.
- If there are items on the agenda such as a controversial topic or public hearing, where the board can reasonably anticipate large attendance, the board may wish to postpone such topic to a later date, if possible, or stagger timing of multiple items so they are spaced apart. The agenda should state that a particular item will be reached on the agenda no earlier than a specific time and encourage attendees to arrive at that time. Note, however, that if such language is added then the board should not discuss that item until that specific time period has been reached or passed.
- Consider adding language to an agenda encouraging participants to email questions by a specific time in advance of the meeting that can be read when that item is reached on the agenda.
- If a public hearing is live-streamed, consider allowing residents to contemporaneously email comments or questions.
Should you have any questions, please contact Nicholas M. Ward-Willis at or any of the attorneys in our Public Law Practice Group.
