Local governments throughout New York State are navigating how to comply with new social distancing requirements implemented in response to the Covid-19 pandemic while trying to conduct essential municipal business. In direct conflict with the Covid-19 social distancing requirements, is the in-person access to meetings requirement in Open Meetings Law (Article 7 of the Public Officers Law). Governor Cuomo has issued two Executive Orders to date, addressing this inherent conflict.
Executive Order 202.1
On March 13, 2020, Governor Cuomo issued Executive Order No. 202.1 (EO 202.1) to temporarily suspend Open Meetings Law to allow public bodies to meet remotely and take action authorized by law without the public being physically present at the meeting. The order authorizes public bodies to hold meetings via teleconference, video-conference or similar platform provided the public has remote access to the meeting and can either view or listen to such meetings live and the meeting is recorded and transcribed at a later time.
Executive Order 202.15
On April 9, 2020 Governor Cuomo issued Executive Order No. 202.15 (EO 202.15) which postpones all in-person public hearings scheduled for April and May until June 1, 2020. Local governments, however, may continue to hold public hearings remotely as long as they comply with EO 202.1. Consequently, if a public body does not have the technology needed to comply with EO 202.1, then, pursuant to EO 202.15, all scheduled public hearings are postponed until at least June 1.
How to Conduct a Meeting During the Covid-19 Pandemic
Pursuant to EO 202.1, public bodies have three options on how to conduct a meeting. They are as follows:
1. Members of the public body are physically present but the general public is not allowed to physically attend the meeting location. The public must be allowed to view or listen to such meetings and the public body must record and later transcribe such meetings.
2. Members of the public body meet via conference call or video conference, with no in-person location. The public must be allowed to listen to or view such meetings and the public body must record and later transcribe such meetings.
3. Members of the public body are either physically present or participating via videoconferencing and the general public is allowed to physically attend the meeting location(s) in person as is provided for under the Open Meetings Law.
The public must be able to view or listen to such meeting live as opposed to providing a recorded session of the meeting. Also, the transcription of the meeting must be word for word and must be made available to the public within a reasonable time.
If a public body is meeting remotely, the location of the board members does not have to be disclosed to the general public. Also, a quorum can be established using a combination of the acceptable methods. If a quorum is established, board members may take action and vote on agenda items over the phone or video conference. It is recommended that the person speaking identify themselves prior to the vote or that a roll call be taken so that the record is clear.
Pursuant to Open Meetings Law, the public is not permitted to speak at a public meeting. If the public body has a policy wherein it normally allows for public comment, it can vote to suspend that policy while EO 202.1 is in place.
If the general public is meeting in-person at a physical location, social distancing guidelines must be implemented for the health and safety of the public. This includes, the reduction of the overall capacity in the meeting room, additional cleaning of facilities before and after the meeting, and the removal of chairs so that people are not sitting next to each other. Finally, the public body should ask residents who are sick to stay home. Similar social distancing guidelines should be implemented when the public body is meeting in-person.
If a public body wants to go into an executive session, a board member must make a motion during the open meeting to enter into executive session. EO 202.1 did not suspend any requirements with respect to executive sessions.
Pursuant to EO 202.1, all non-essential gatherings of individuals of any size for any reason are canceled or postponed at this time. The general consensus of how this relates to public meetings is that the order prohibits public bodies from holding non-essential meetings in-person.
How to conduct a Public Hearing During the Covid-19 Pandemic
There is no statutory definition of what constitutes a public hearing. However, a public hearing is a type of meeting under the Open Meetings Law. Therefore, EO 202.1 allows boards to conduct public hearings remotely provided that the public can listen and view the meeting and participate in the public hearing. The participation requirement is integral to the public hearing process. The public must have a reasonable and meaningful opportunity to be heard.
At this time, pursuant to EO 202.1 and EO 202.15, public bodies may only conduct public hearings if members of the public body meet via conference call or video conference, with no in-person location. The public must be allowed to listen to or view such meetings and the public body must record and later transcribe such meetings.
Videoconferencing is the best option for public hearings because it provides a virtual meeting place for board members, attorneys and the public to interact. It also allows a greater opportunity for public comment and it gives attorneys a better platform to present their case thoroughly through the use of exhibits. Boards should provide opportunity for the public to comment via email before and during the meeting to a designated Village official. They should also provide a call-in number if the circumstances allow for public comment during the hearing. The board should also consider leaving a public hearing open for written comment in the event there is not enough time to address all comments during the public hearing. Finally, all application materials should be made available to the public prior to the public hearing on the Village’s website.
For Villages that are in the process of adopting their budget, NYCOM recommends not to delay the hearing until June 1, but rather obtain the necessary technology to conduct a remote public hearing and adopt a budget prior to the May 1 deadline.
Notice Requirements for Meetings and Public Hearings
Public Officers Law § 102 defines a “meeting” as “the official convening of a public body for the purpose of conducting public business.” Pursuant to Public Officers Law § 103, any time there is a quorum of a public body, either in person or via video conference, for the purpose of discussing public business, the meeting must be open to the general public, whether or not the body intends to take action.
In addition, Public Officers Law § 104 requires public bodies to notify the public of the time and place of every meeting. Open Meetings Law requires notice of every meeting to be: 1) conspicuously posted in one or more public locations; 2) given to the news media; and 3) conspicuously posted on the village’s website, if it has the ability to so.
Pursuant to EO 202.1, the notice for remote meetings must provide the following information:
1. The name of the public body meeting;
2. The date and time of the meeting;
3. That the meeting is being conducted in accordance with Executive Order 202.1 and in-person attendance will not be permitted;
4. The remote method that the public body will be using to conduct the meeting and how the public can view or listen to the meeting;
5. The URL or internet address or the website streaming the meeting or the remote access code if using the Zoom App or other application;
6. If the meeting will have a public comment period or if a public hearing is being conducted, the notice should indicate that individuals may submit comments via email or regular mail, whether such written comments must be received prior to the commencement of the meeting or whether the meeting/public hearing will be held open for a specific number of days for the receipt of such written comments, and that the written comments will be made part of the record.
Pursuant to Open Meetings Law, notice must be given at least 72 hours before the meeting. Public bodies are not required to pay for an official advertisement in a newspaper. They are only required to notify the media by faxing or emailing the notices to the media, including television, radio and newspapers.
However, for public hearings, notice must be given pursuant to the requirements noted in each municipality’s code. In most cases, notice must be given at least two to three weeks prior to the public hearing and the notice must also be published in designated local newspapers.
Due to the uncertainty regarding the timing and magnitude of this pandemic, additional orders may be issued that may further impact how public meetings and hearings are held. I will post updates if and when new orders are put in place. The information in this article only addresses Executive Orders issued through April 13, 2020. Should you have any questions regarding a specific case or issue, please contact Andrea Tsoukalas Curto at ATCurto@Forchellilaw.com.