Planning to cancel a public board meeting due to COVID concerns? You can conference call instead (but do it the right way.)
A core principle of the Open Meetings Law (OML) is that public bodies must conduct public business in public.
Amid widespread public health concern about public gatherings,that principle is adapting to the Coronavirus emergency.
On March 13, 2020, Governor Cuomo issued Executive Order 202.1, which continues the suspension and modification of laws related to the emergency.
In addition to many actions that directly address public health, the Executive Order (1) suspends the Open Meetings Law provisions that require public bodies to meet in public and allow the public to attend meetings, and (2) allows all public bodies to meet remotely and conduct public business by telephone conference calls.
The authority granted by the Order has three important caveats.
1. The public must have the ability to view or listen to the meeting;
2. The meeting must be recorded; and
3. The meeting record must be “later transcribed”.
While the Executive Order provides more flexibility that the videoconferencing provision of the OML (which effectively prohibits telephone conferences), there are some important considerations that public bodies need to take into account when conducting a conference call by telephone.
Provide Notice. The public body must still give notice of the meeting, and the means by which the public may view or listen to the conference call. Posting a notice on the public body’s website and providing notice to the press that receive notice of regular and special meetings is required. If a municipality uses social media channels, they may provide another opportunity for giving notice to the public.
Provide for Public Access to the Call. Executive Order 202.1 requires that the public have opportunity to listen to the call. It does not require public participation.
Public Hearings. The Executive Order does not address whether public hearings may be held during a meeting convened by conference call.
Public Comment. Many boards provide opportunity in the course of an in-person meeting for public comment by interested members of the public. The Executive Order does not require a board to provide an opportunity for public participation. It may not be technically feasible for boards to provide for public comment on a conference call, but boards may wish to consider whether there are alternative channels that can be used to allow interested members of the public to comment on issues of concern.
Properly Record Actions. At in-person meetings, board members can use visual cues that will not be available on a telephone conference call: a nod yes, a raised hand, knowing who a speaker is because he or she standing at a podium. Sometimes, spirited discussions take place among board members or consultants, staff or member of the public. The person chairing the call will have to give thought to the rules of engagement, carefully organize the agenda to accomplish the public business of the board as efficiently as possible, and be prepared to manage discussion.
The Order requires that calls be recorded and later transcribed, so the board will have to make appropriate arrangements to make a recording, and anticipate technical issues that may come up: dropped calls, speakers that are reluctant to cede the floor or follow rules, problems with call-in quality.
All speakers, including board members, should identify themselves when speaking.
It may be prudent to explore technical options for conference calls. Many services will record the call, and some offer the option of providing a transcript. To ensure the integrity of the conference call, boards might want to ask providers to issue individual codes for board members and consultants, and a general code for applicants and public participants. Boardsshould schedule a trial run for board members before they hold their first public meeting by conference call.
Special agenda items. Some agenda items will require special attention. When a Local Finance Law matter is on the agenda, it may be prudent to ensure bond counsel is involved and approves the conference call procedure. When a matter may result in litigation, the board may need to go into executive session or obtain advice of counsel, and the chairperson should know how to properly excuse the public from the call and stop recording discussions that are privileged or otherwise entitled to be discussed in executive session.
Availability of documents. When it is feasible to do so, the OML requires boards to make documents prepared for a meeting available on their website and at the meeting. That determination is made by the public body. Although the Executive Order does not modify that charge, boards should give attention to how documents will be made available to board members at remote locations, as well as the public, so that documents that will be the subject of review and discussion are made available to the extent practicable. It may be prudent to include time and date, or other identifying information, on the document, and read that information into the record before a vote to assure that there is no question later about the content of the document that there the board acted on.
Minutes. The clerk of the board is obligated by the OML to keep a record of votes, including the names of the members who voted, and to file those minutes in a designated place. The Executive Order does not excuse clerks from that responsibility. Therefore, the conference call must include the clerk and attention should be given to recording all votes in proper form so that the clerk may promptly file minutes to satisfy the OML requirement.
If you need assistance in preparing to shift to a conference call meeting, please contact us by phone or email.
This is not intended to be legal advice. You should contact an attorney for advice regarding your specific situation.
J&G, LLP practices municipal, land use, environmental, zoning and many other areas of law impacting municipalities. We can be reached at (845) 764-9656.