June 02, 2022 Changes to the Open Meetings Law Regarding the Use of Videoconferencing
KEEPING YOU INFORMED…
We are writing to advise you of recent amendments to the Open Meetings Law regarding the use of videoconferencing during public meetings.[1] As we advised in our April 15, 2022 client memorandum, recent legislation extended the authority to hold remote public meetings through June 8, 2022. The Governor has again issued an executive order continuing the State COVID-19 disaster emergency through June 14, 2022. As a result, the authority to conduct remote public meetings will continue uninterrupted through June 14, 2022.
Pursuant to the new legislation, effective June 15, 2022 (or later if the Governor extends the COVID-19 disaster emergency beyond June 14), if a public body wishes to allow one or more of its members to participate in a public meeting by videoconference at a location that is not open to the public, it must comply with the procedures set forth below.
Prior to the pandemic, the law did not authorize members of a public body to participate in a public meeting by videoconference from a location that is not open to the public. During the pandemic and through June 14, 2022, various executive orders and laws allow members to participate by videoconference from a private location. Effective June 15, members of a public body may only participate in a meeting:
• in-person at a location that is open to the public;
• by videoconference at a location that is open to the public; or
• if the public body complies with the below-listed procedures, by videoconference at a location that is not open to the public if the member cannot attend the meeting in-person or by videoconference in a location that is open to the public because of an “extraordinary circumstance.”
While the text of the law is somewhat unclear, it is our interpretation of the new law, as well as the NYS Committee on Open Government’s interpretation, that the below-listed procedures only apply when a public body wants to allow a member to attend a public meeting by videoconference at a location that is not open to the public.
Thus, if all members attend a meeting at locations that are open to in-person attendance by the public, then the public body can operate as it did before the pandemic. If videoconferencing is used for some members of the public body who participate in the meeting at a location that is open to the public, then the pre-pandemic notice rule continues to apply. This rule continues to require that the meeting notice include: (a) a statement that videoconferencing will be used; (b) the location for the videoconference location(s); and (c) a statement that the public can attend the meeting at any location.
New Procedures that Must be Followed Beginning on June 15, 2022
(1) Local Law/Resolution
If a public body wants to allow a member to attend a public meeting by videoconference without inviting the public to the videoconference location, it must first adopt a local law (for a county, city, town or village) or resolution (for any other public body, including a school district) authorizing the use of videoconferencing: (a) for itself and its committees or subcommittees; or (b) for itself and/or specifying that each committee or subcommittee may make its own determination.[2] A public hearing is required prior to the adoption of the local law or resolution (the hearing can be held immediately prior to the adoption of the local law or resolution).
The local law or resolution must include a list of “extraordinary circumstances” pursuant to which a member of the public body can be physically absent from a meeting and participate by videoconference from a location that is not open to the public. Pursuant to the new legislation, these “extraordinary circumstances” may include disability, illness, caregiving responsibilities or any other significant or unexpected factor or event that precludes the member’s physical attendance at a meeting.
(2) Written Procedures
The public body must establish written procedures governing member and public attendance consistent with the new legislation (these procedures must include the list of “extraordinary circumstances” that is included in the local law or resolution pursuant to which a member of the public body can participate by videoconference at a location that is not open to the public). These procedures must be conspicuously posted on the public body’s website.
The public body must ensure that its members can be heard, seen and identified during the meeting (except during an executive session), including when any motions, proposals, resolutions and any other matter is formally discussed or voted upon.
(3) Quorum
Members of a public body who participate in a public meeting in-person or by videoconference at a location that is open to the public (and which has been included in the meeting notice) count toward a quorum. Members who participate by videoconference in a location that is not open to the public (because of an “extraordinary circumstance”) do not count toward a quorum but may participate and vote in the meeting.
(4) State Disaster Emergency Exception
The legislation authorizes public bodies to hold fully remote meetings (with all members of the public body participating by videoconference in a location that is not open to the public) during a State disaster emergency declared by the Governor, or a local state of emergency proclaimed by the chief executive of a county, city, village or town, if the public body determines that the circumstances necessitating the emergency declaration would affect or impair the ability of the public body to hold an in-person meeting.
In this circumstance, it would be best practice for the public body to conduct the meeting in accordance with the rules that have been in place since the beginning of the COVID-19 pandemic and that are scheduled to expire effective June 15, 2022 (these procedures authorize public bodies to hold meetings remotely or by conference call or similar service without providing the public with in-person access if the public can view or listen to the meeting in real-time and if the meeting is recorded and later transcribed).
(5) Remote Access and Public Participation
If a member of a public body uses videoconferencing during a public meeting at a location that is not open to the public because of an “extraordinary circumstance,” the public body must provide members of the public the ability to: (a) view the meeting by video; and (b) participate in the meeting by videoconference in real time if the meeting allows for public comment or participation. The public body must ensure that videoconferencing authorizes the same public participation or testimony as in-person participation or testimony.
(6) Public Notice
If a member of a public body uses videoconferencing during a public meeting at a location that is not open to the public because of an “extraordinary circumstance,” the public notice for the meeting must include: (a) a statement that “extraordinary circumstances” videoconferencing will be used; (b) directions for how the public can view and/or participate (if participation is permitted) in the meeting remotely; (c) the location where the required documentation for the meeting will be posted or available; and (d) the physical location(s) for the meeting where the public can attend.
(7) Recording Requirement
All meetings that use videoconferencing at a location that is not open to the public due to an “extraordinary circumstance” must be recorded. The recordings must be posted or linked on the public body’s website within five business days of the meeting and must remain on the website for at least five years. The recordings must be transcribed upon request.
(8) Compliance with the Americans with Disabilities Act (“ADA”)
All public meetings that are broadcast or that use videoconferencing must utilize technology to permit access by members of the public with disabilities consistent with the ADA. For the purposes of this section, the term “disability” has the meaning defined in New York Executive Law § 292.[3]
One example of this technology is the use of closed captioning.
(9) Minutes
The minutes of a meeting that includes videoconferencing must state which members participated remotely from a private location due to “extraordinary circumstances.”
If you have any questions regarding the new legislation or if you would like assistance drafting the required local law, resolution and/or written procedures for the use of “extraordinary circumstances” videoconferencing during public meetings, please contact Lindsay Crocker, Lauren Schnitzer or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
[1] These amendments to the Open Meetings Law will expire on July 1, 2024.
[2] In a city with a population of one million or more, each community board can authorize videoconferencing.
[3] Executive Law § 292 defines the term “disability” as “(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment . . . .”
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