Submission Date:
Question:
A member of my board of trustees would like for us to meet in person. There would be 9 people in the room. They wanted to know if allowing the meeting to be simultaneously on Zoom would satisfy the requirements of open meetings law even though only one member of the public would be able to be physically present in order to stay under the 10-member cap for small gatherings.
Answer:
Since the onset of the pandemic, we have had two questions about the impact of Executive Orders on the Open Meetings Law.
The first question, back in March 2020 (remember March 2020? Ugh.), led to this advice:
... the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.
Of course, by Fall 2020, we all became experts at these modified proceedings, and were asking refined questions like:
How long does a library (public or association) or a cooperative public library system have to keep the recording of board or committee meetings?
(Answer: until transcribed.)
This brings us to December, 2020.
On December 2, 2020, the Governor issued Executive Order 202.79,[1] continuing the suspension and temporary modification of the Open Meetings Law through January 1, 2021.[2] So here we are, still meeting under modified circumstances.[3]
Which brings us to the member's question:
[Does] allowing the meeting to be simultaneously on Zoom ... satisfy the requirements of open meetings law even though only one member of the public would be able to be physically present in order to stay under the 10-member cap for small gatherings[?]
Answer: Yes.
Here is why I can answer this question with one-word confidence.
Back in August, 2020 (remember August, 2020? Slightly less "ugh.") the Executive Director of the State Committee on Open Government, realizing that different areas have different COVID numbers and are facing different Open Meetings Law compliance challenges, wrote in an Advisory Opinion:[4]
...if a public body is convening an essential meeting, the body must ensure that it adheres to social distancing, masking, and any other administration requirements, and if there is any question about whether it is able to maintain a safe space in which to hold an essential open meeting, it must provide a contemporaneous video or audio broadcast such that members of the public who cannot safely attend in person “ha[ve] the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”
Further, the Advisory Opinion went on to emphasize that room capacity and safety concerns should not impede public access to an OML-accessible meeting. "[A] public body may not artificially limit attendance at its meetings – to do so would not be consistent with the requirements of the Open Meetings Law."
The solution posed in the question submitted by the member adequately addresses this concern. By enabling observation and attendance via Zoom, the proceeding will be virtually accessible even though it has been physically convened. The key is ensuring access at a time of modified operations.
And what do we do when Executive Order 202.72 expires?
We'll see in the New Year!
Thanks for a thoughtful question, I wish you a productive and safe meeting.
[1] https://www.governor.ny.gov/news/no-20279-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
[2] If you'd like to follow the daisy-chain of executive orders on this, here goes: Executive Order 202.1 first suspended/modified the Open Meetings Law Requirements, and then Executive Orders 202.14, 202.28. 202.38, 202,48, 202.55, 202.60, 202.67, and now, 202.72, kept that suspension/modification going.
[3] There are several legal challenges under way, based on the ability of the Governor to continue the state of emergency and resulting Executive Orders. I am not commenting on that.
[4] Found at https://www.dos.ny.gov/press/2020/Essential%20Meeting%20OML%20AO.pdf
Tag:
Board of Trustees, COVID-19, Emergency Response, Executive Order, Open Meetings Law
