With the coronavirus changing how meetings are held, public meetings must be recorded and transcribed, but are not required to be posted, under current modifications made by Executive Order to existing laws.
This was one of several key takeaways from the CLE webinar, “Changes In The New York Open Government Laws During The Declared Coronavirus Disaster Emergency.”
Shoshanah Bewlay, executive director of the NYS Committee on Open Government, discussed New York State open government laws during the Governor’s Executive Order 202 series and related NY PAUSE program.
Open Meetings Law
Though things have changed with the coronavirus, citizens still have the right to “attend and listen to the deliberations and decisions that go into the making of public policy.”
Bewlay examined that the Open Meetings Law requires that public business be performed in an open and public manner and that citizens be “fully aware of and able to observe the performance of public officials.”
On March 13, Governor Cuomo, in response to a disaster emergency declared pursuant to New York State Executive Law 28, issued Executive Order 202.1 suspending certain aspects of the Open Meetings Law relating to in-person attendance.
Bewlay noted that this order has been extended a number of times and is in effect until July 6, pursuant to Executive Order 202.38. Meanwhile, Executive Order 202.10 directed that non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) be canceled or postponed while the order was in effect.
Right now under Executive Orders 202.10 (as amended) and 202.1 (as extended), Bewlay said, board members who wish to may meet in person within the 25-person limit if the location is in a region that has reached Phase 3 for reopening. Social distancing and cleaning/disinfection protocols must be followed.
However, admitting some members of the public to the meeting while limiting the number of those who can attend (to a total of 25 including members and the public) is not a good idea, said Bewlay. A board may meet in person and stream video and audio of the meeting to the public.
“I don’t think any court is going to sanction a public body for protecting the health and safety of its members and the public,” said Bewlay. “I think that will be a very difficult sell if there’s ever a case.”
The Committee on Open Government has issued two advisory opinions recently concerning Executive Order 202.1. One is on how the order affects the ability to obtain a quorum and another is on the requirement for contemporaneous remote access by the public in lieu of in-person public attendance.
Having the public at a meeting is more problematic because of current restrictions, said Bewlay. She reiterated that public boards are not allowed to hold public meetings without the public.
She believes that it would be best for compliance reasons if the current Executive Order suspending in-person requirements at open meetings remains in place until social distancing is no longer required.
Bewlay acknowledged that more people know how to use Zoom and other remote-attendance platforms now, particularly during the pandemic. Municipalities have expressed concern about posting public links to Zoom or other meetings on their websites due to instances of “Zoom-bombing” from unwelcome guests. She noted that tighter controls have helped alleviate the risk.
Executive Order 202.1 permits to the extent necessary any public body to meet and take such actions authorized by the law without permitting public in-person access to meetings. It authorizes such meetings to be held remotely by conference call or similar service provided that the public has the ability to view or listen to such proceedings and that such meetings are recorded and later transcribed.
“The transcription requirement threw many for a loop,” said Bewlay, who noted that boards do not need to hire a stenographer or professional service to meet the verbatim requirement. Many remote platforms contain transcription as an included option as well.
It could be challenging for the board and the board secretary to permit live questions and answers during a remote session in light of the new transcription requirement imposed by the Executive Order.
Instead, Bewlay recommended that, for boards wishing to permit public comment or participation at their remote meetings, the board should solicit questions or comments in advance of the meeting or allow those attending to submit questions as the meeting progresses.
The board would then be able to respond during the meeting or at a future meeting.
“I would suggest that public bodies use their best diligence to ensure the health and safety of the board and the public in holding meetings,” said Bewlay.