UPDATE: We have gotten a few follow-up questions about our blog post this morning and are publishing this updated post to clarify a statement about a public body’s ability to conduct a remote meeting even without the Governor’s “feasibility finding” being included in the most recent EO and Disaster Proclamation.
As we previously stated, the Governor did not include in his latest disaster proclamation his previous finding that in-person attendance at public meetings was not feasible due to the disaster. In addition, the Governor’s newest executive order did not extend the prior executive orders that relaxed in-person meeting requirements. Exec. Order 2020-15.
That does not necessarily mean that public bodies are prohibited from continuing to hold remote meetings, although we have little to no guidance on this issue since there have been no cases or PAC opinions interpreting this section of the OMA. A decision to hold a remote meeting now would seem to depend on localized circumstances and the head of the public body making the required statutory finding that an in-person meeting is not practical or prudent because of the disaster. So, while the Governor seemed to send a message last Friday that there is no longer a state-wide justification to conduct remote meetings under section 7(e) of the Open Meetings Act, there could be a localized justification for a public body to continue to utilize that procedure, provided the local body can make the required statutory finding. Just as an example, there may be areas in the State with higher than average case counts and/or lower than average vaccination rates that might support a public body conducting a meeting remotely.
To the extent that a public body can make the required local finding that an in-person meeting is not practical or prudent because of the disaster, then the procedures for conducting remote meetings under section 7(e) of the OMA would need to be followed.
For the majority of public bodies that have moved forward or are moving forward with in-person meetings, however, this might be a good time for local governments to review their remote participation policies to recall how these policies work, and to the extent that they don’t have a policy, consider enacting one. While many local governments have made video or audio conferences a part of their meetings in the past year, they should make sure they have a remote attendance policy to allow individual members to attend meetings remotely through the “traditional” Open Meetings Act provisions relating to electronic attendance. That traditional remote meeting process in the Open Meetings Act allows public bodies to adopt rules to allow a member to participate by video or audio conference when a physical quorum is present at the meeting so long as the member is prevented from physically attending because of: (i) personal illness or disability; (ii) employment purposes or the business of the public body; or (iii) a family or other emergency. The remote member must notify the clerk of his or her physical absence ahead of time, unless impractical, and a majority of the public body then approves allowing the remote member’s participation by video or audio conference.