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Law360 (April 14, 2020, 5:30 PM EDT) --
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| Stephen Piepgrass |
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| Ashley Taylor |
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| Chris Carlson |
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| Miranda Dore |
To date, 49 states and the District of Columbia have weighed in on how their governments will conduct the public's business in the public eye despite the increasing precautions that these states are enforcing regarding public meetings.
As but a few examples, recognizing their current laws fail to provide the mechanisms necessary to conduct business electronically, Ohio[2] is just one state that has taken measures to enact new legislation to allow open meetings to be held by teleconference or video conference when the governor has declared a public health emergency.
Others like Kentucky Attorney General Daniel Cameron[3] have read their state's current regulations to alleviate certain requirements for public meetings while encouraging government agencies to use electronic communication for all necessary business.
Meanwhile, Virginia Attorney General Mark Herring[4] has opined that Virginia's open meetings laws allow local government meetings by audio or video conference only if the subject of that meeting has a tangible nexus to the ongoing emergency.
Background
Each state has sunshine laws that govern public access to governmental records and meetings. These laws are recognized as pivotal to public participation in our democracy.
Interestingly, just last week the nation recognized Sunshine Week[5] — a seven-day period to highlight the importance of open government policies. But this year, Sunshine Week occurred from March 15 through March 21 — in the wake of unprecedented school shutdowns and mandated social distancing across our nation.
In general, during an emergency, states provide local governments alternatives to the normal practice of holding in-person meetings that are open to the public. Yet many states' existing laws fail to account for the type of prolonged public health emergency brought on by COVID-19 — and the tangible harms that occur through public gatherings.
Although local governments must carry on the normal business that preceded this crisis, they are faced with doing so during a projected months' long period of social distancing.
Under many states' existing sunshine laws, public meetings may occur electronically, outside the physical presence of the public, only if the emergency is the subject of the meeting. Otherwise, the public body must provide an accessible physical location, even if only one person is present.
Promoting Flexibility in an Unprecedented Crisis
Many governors and state attorneys general recognize the conundrum the current crisis has created. While local government bodies must meet to address the needs of communities, public meetings threaten to spread the virus and exacerbate the potential harm to the public.
Faced with this quandary, many governors and state attorneys general either are proactively reading their current state regulations to provide for normal business with modified public access through electronic communications, or they have directed or urged the legislature to modify existing laws to allow the business of government to continue.
As has become clear for local officials and citizens alike, while business as usual will be suspended for an indefinite period, routine, nonemergency business must continue to prevent our democracy from grinding to a halt.
So far, 42 governors or state attorneys general have weighed in on how their governments will remain accountable to the people during the age of COVID-19.
Alabama
Gov. Kay Ivey issued a proclamation[6] that governmental bodies could conduct meetings by audio or video conference if the meeting is limited to matters necessary to respond to COVID-19 or necessary to perform essential minimum functions.
Arizona
Attorney General Mark Brnovich declared that Arizona's open meeting law[7] permits public bodies to "hold a remote meeting through technological means" so long as the public is given advance notice.
Arkansas
On April 10, the joint budget committee of the Arkansas Legislature voted to change the state's Freedom of Information Act by an amendment[8] to H.B. 1082. The amendment would allow cities and counties to hold public meetings by telephone, videoconference or video broadcast if the governor declares a disaster emergency.
California
Gov. Gavin Newsom issued Executive Order N-25-20[9] that in part authorized public bodies to meet via teleconference and to make such meetings accessible by telephone or otherwise electronically to anyone seeking to attend or address the body.
Colorado
Attorney General Phil Weiser issued guidance[10] interpreting Colorado's Open Meetings Law and Administrative Procedures Act to allow public bodies to conduct public meetings remotely by electronic means.
Connecticut
By Executive Order No. 7B,[11] Gov. Ned Lamont suspended the state's in-person open meeting requirements so public bodies could meet by audio or video conference so long as public access is available.
Delaware
As part of Gov. John Carney's emergency declaration,[12] public bodies could conduct all public meetings electronically, "either by means of telephone conference call or video-conference call."
District of Columbia
The D.C. Council with the passage of the COVID-19 Response Emergency Amendment Act of 2020[13] relaxed the requirement for public body meetings such that "no meetings shall be required during a public health emergency." The act also provides greater flexibility of the Open Meetings Act when meeting remotely.
Florida
Attorney General Ashley Moody issued an advisory legal opinion[14] in response to a request from Gov. Ron DeSantis concluding that absent legislative or judicial action, Florida's existing laws do not permit a necessary quorum to be present by means other than in-person.
In response, DeSantis issued Executive Order 20-69[15] that authorized public bodies to utilize audio and video conferencing for all public meetings until expiration of EO 20-52 — Florida's March 9 declaration of emergency.
Georgia
Attorney General Chris Carr advised[16] city leaders to postpone discussion items that could wait during the present emergency conditions, telling cities to consider their own technological capabilities to provide appropriate public access to meetings that must take place.
Hawaii
Through a supplemental emergency proclamation,[17] Gov. David Ige suspended the state laws that require that government agencies to conduct public meetings. To the extent necessary, public bodies are to conduct business "through remote technology without holding meetings open to the public."
Idaho
Gov. Brad Little amended[18] his March 13 proclamation to suspend Idaho's open meetings law, but at least one member of the public agency must still be physically present at the location designated in the meeting notice. Agencies are encouraged, but not required, to enhance public attendance and participation via telecommunication devices during the state of emergency.
Illinois
Citing the governor's Executive Order 2020-07, Attorney General Kwame Raoul advised[19] that the requirement of in-person attendance and the limitations on when remote participation is allowed for public meetings are suspended.
Indiana
With Executive Order 20-09,[20] Gov. Eric Holcomb temporarily altered Indiana's public meeting and records access laws for two weeks (through April 7). Holcomb's guidance requires all public agencies to limit meetings to those essential for operations and for issues related to health, safety and coronavirus response efforts.
Iowa
As part of an additional emergency proclamation,[21] Gov. Kim Reynolds suspended all Iowa laws that prevent the use of electronic meetings or the limitation on the number of people present at an in-person meeting site.
Kansas
Attorney General Derek Schmidt issued a best practices guide[22] to public bodies and agencies that must implement Kansas's Open Meetings Act regulations. Schmidt advised that public bodies should utilize audio or video technology and post online notices describing its intent to meet solely by electronic communication.
Kentucky
Attorney General Daniel Cameron concluded that Kentucky's Open Meetings Act excuses agencies from participating in a meeting from one location issuing an opinion[23] that public agencies "should precisely identify a website, television station, or other technological means by which the public may view a meeting conducted under [Kentucky's Open Meetings Act] until the conclusion of the state of emergency."
Louisiana
Attorney General Jeff Landry interpreted[24] Louisiana's Constitution to allow suspension of its Open Meetings Law during an emergency. This means that quorum requirements still apply, but according to the governor's emergency proclamation, all public bodies may attend essential government meetings via audio or video conference during the COVID-19 emergency.
Maine
Gov. Janet Mills signed into law emergency legislation[25] that allows public bodies to conduct open meetings through "telephonic, video, electronic or other similar means of remote participation." Public notice is required, which must include the method by which the public can attend.
Maryland
Attorney General Brian Frosh provided informal guidance[26] addressing the state's Open Meetings Act saying public bodies are permitted to meet by teleconference so long as the public can listen. The guidance highlighted that it is based on past opinions of the compliance board and does not predict how the board or courts might apply the act in any particular matter.
Massachusetts
On March 12, Gov. Charles Baker[27] suspended certain provisions of the state's Opening Meeting Law, ordering public bodies to make provisions to ensure public access to deliberations through adequate, alternative means that include audio or video conferencing and any other technology that enables the public to clearly follow its proceedings.
Michigan
On March 24, Michigan Gov. Gretchen Whitmer issued[28] Executive Order 2020-15 temporarily authorizing remote participation in public meetings and hearings, but stressing that public bodies must continue to conduct public business during the COVID-19 emergency. The authorization continues until April 15.
Minnesota
Gov. Tim Walz's stay-at-home order[29] authorized townships to use audio and video conferencing for any meeting under the circumstances described in Minnesota's open meetings law.
Mississippi
In response to numerous questions from various public bodies, the Mississippi Ethics Commission — despite having no advisory authority — issued guidance[30] interpreting the state's Open Meetings Act. The commission recommended that public bodies strictly comply with all government orders and the Act, which could be achieved by teleconference or video means.
Missouri
The Missouri legislature fast-tracked a bill[31] providing for live streaming public meetings via the internet while a declared state of emergency is in effect. Attorney General Eric Schmitt issued guidance[32] on Missouri's existing sunshine law the day after introduction of the bill, interpreting the current law to allow audio and video conferencing.
Montana
Attorney General Tim Fox issued a letter of advice[33] interpreting Gov. Steve Bullock's various COVID-19 directives, Montana's Constitution and its open meetings law to conclude that public meetings could be held remotely. However, the corresponding guidance also encourages public bodies to cancel nonessential meetings and limit meetings to critical items only.
Nebraska
Attorney General Doug Peterson issued[34] guidance on Gov. Pete Ricketts' Executive Order No. 20-03[35], which provided a limited waiver to the Nebraska Open Meetings Act that permits public bodies to meet by audio and video conferencing or via other telecommunications applications so long as public access to the meeting is provided.
Peterson answered local government officials' questions clarifying that the waiver leaves all other provisions of the Open Meetings Act intact such that public bodies should not suspend public access to any meetings.
Nevada
Gov. Steve Sisolak issued an emergency order[36] that suspended the requirement that government entities hold in-person meetings. Instead, meetings can be held over audio or video conference and must continue to allow for public comment. The order is set to expire on April 16.
New Hampshire
Gov. Christopher Sununu issued Emergency Order No. 12[37] pursuant to Executive Order No. 2020-04[38] that provides public bodies are "permitted and encouraged to utilize [] emergency meeting provisions of [the open meetings law] to conduct meetings through electronic means."
Emergency Order No. 12 waived the physical location requirement for the duration of the state of emergency so long as the public body provides public access, notice, and a mechanism to alert the public of problems during the meeting, and that the body adjourn if the public is unable to access the meeting.
New Jersey
On March16, the New Jersey legislature passed[39] legislation that would allow public bodies to conduct meetings and provide notice by electronic means during periods of emergency. The bill also allows public bodies to cast votes electronically and remotely during periods of emergency.
New Mexico
Attorney General Hector Balderas issued guidance[40] to public entities that the "most prudent thing to do to ensure compliance with [the Open Meetings Act] would be to postpone/cancel a public meeting." The board or commission may, however, proceed with a virtual meeting if the matter is time sensitive.
New York
Gov. Andrew Cuomo extended Executive Order No. 202[41] with EO 202.1[42] that suspends or modifies certain laws to include New York's Public Officers Law. Under EO 202.1, public bodies are authorized to meet by conference call or similar service so long as the public has access to that meeting, and the meeting is recorded and later transcribed.
North Carolina
Attorney General Josh Stein's office issued an advisory letter[43] stating that local governments could conduct necessary meetings via electronic communication because North Carolina's Open Meetings Laws do not expressly prohibit doing so. Local governments, however, are encouraged to postpone meetings that are not necessary for immediate ongoing governance.
North Dakota
Attorney General Wayne Stenehjem advised[44] that the "decision whether to hold a meeting rests with the public entity," noting that some meetings may be canceled or postponed. Stenehjem highlighted that the state's open meetings law still requires an accessible physical location, but an agency can provide additional means (call-in numbers, real time/live streaming) for the public to attend or observe.
Ohio
On March 13, Attorney General Dave Yost advised[45] school boards, city councils and other local legislative bodies that under a "very limited fact pattern," like the prolonged period of social distancing during the COVID-19 public health emergency, "there may be a basis for local public bodies to use electronic means to meet and comply with the [State's Open Meetings Act]."
On March 16, the Ohio House[46] introduced H.B. 557 to allow public bodies to meet by video conference during a health emergency.
Oklahoma
The Oklahoma Legislature approved and Gov. Kevin Stitt signed new legislation[47] that temporarily revises the state's Open Meetings Act to allow agency members and the public to participate in public meetings via audio and video conference. This legislation has a sunset date of March 1, 2021.
Oregon
Oregon's Public Meetings Law already provides that a public body may conduct a meeting by telephone or other electronic means.[48]
Pennsylvania
Recently, the Pennsylvania House[49] unanimously voted 198-0 to change the state's open meetings law to allow public participation via a telecommunication device "to the extent possible."
In addition, agencies must notify the public in advance of plans to hold meetings under the special rules, and the meeting must be livestreamed, recorded, or, at minimum, that draft minutes be made available within 48 hours of the meeting's conclusion.
Rhode Island
On March 16, by executive order, Gov. Gina Raimondo relieved[50] public bodies from the prohibitions regarding use of telephonic or electronic communication to conduct meetings in the state's Open Meetings Act.
South Carolina
According to Gov. Henry McMaster's Executive Order 2020-21, public bodies are permitted to "utilize any available technology or other reasonable procedures" to conduct open meetings.
South Dakota
By Executive Order 2020-14,[51] Gov. Kristi Noem temporarily suspended part of the state's open meetings law that required public bodies to "provide one or more places at which the public may listen to and participate." Instead, public bodies are temporarily permitted to meet by teleconference.
Tennessee
On March 20, Gov. Bill Lee issued Executive Order No. 16[52] that suspended part of the state's open meetings law to allow public bodies to meet and conduct essential business by electronic means. The order remains in effect until May 18.
Texas
On March 16, Gov. Greg Abbott approved[53] Attorney General Ken Paxton's request[54] to temporarily suspend a limited number of open meeting laws in response to COVID-19. The governor's action allows "government bodies to conduct meetings by telephone or video conference to advance the public health goal of limiting face-to-face meetings."
Utah
The Utah Senate and House recently passed a bill[55] to modify legislative rules to allow the legislature to meet electronically in special sessions or interim meetings during emergencies.
Vermont
Attorney General TJ Donovan advised[56] that the state's Open Meeting Law still requires a physical location for all meetings of a public body, including those with electronic attendance — at least one member of the public body or staff member must be present in the physical location even if all other members of the quorum attend electronically.
The Vermont Senate is considering a bill[57] that would temporarily allow public meetings to occur electronically without a designated physical location as long as the public can attend by electronic means.
Virginia
Attorney General Mark Herring issued an opinion[58] interpreting Virginia's sunshine laws finding that local governments could only conduct public meetings via audio or video conference if the meeting is related to the emergency that is the subject of the governor's emergency declaration.
Washington
As an early state to declare emergency, Attorney General Bob Ferguson provided guidance[59] on March 6, to public bodies that they first consider whether a meeting can be cancelled or rescheduled, but a physical location is still required. However, this guidance permitting agencies to evaluate additional means for public attendance, referencing the possibilities of utilizing real time streaming or audio and video conferencing.
West Virginia
The Ethics Commission recently issued an opinion[60] responding to various Open Meetings Act compliance inquiries. Referring to a 1999 opinion, the commission advised that "[f]or emergency, special or regular meetings, a governing body may meet telephonically or via live audio or visual stream if members of the public may also attend."
Wisconsin
Attorney General Josh Kaul published the Wisconsin Department of Justice's[61] Office of Open Government advisory statement[62] that explained governmental bodies could conduct meetings via audio or video conference "if the public is provided with an effective way to monitor such calls." The Wisconsin DOJ suggested that not all routine business may continue via electronic communication.
Wyoming
State officials have yet to issue a formal directive regarding Wyoming's Open Meetings Act in light of COVID-19. However, according to the Wyoming Press Association[63], public bodies can meet electronically and still fulfill their duties under the law because of the state's emergency declaration.
Stephen C. Piepgrass and Ashley L. Taylor Jr. are partners, and Chris W. Carlson and Miranda A. Dore are associates at Troutman Sanders LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.cdc.gov/coronavirus/2019-ncov/index.html.
[2] https://legiscan.com/OH/text/HB557/id/2171898.
[3] https://ag.ky.gov/Priorities/Government-Transparency/opinions/Opinions%20New/OAG%2020-05.pdf.
[4] https://www.oag.state.va.us/files/Opinions/2020/Sullivan-Opinion-Request.pdf.
[5] http://sunshineweek.org/.
[6] https://www.sos.alabama.gov/newsroom/governor-kay-ivey-issues-state-emergency.
[7] https://www.azag.gov/opinions/i20-002.
[8] https://www.arkleg.state.ar.us/Calendars/Attachment?committee=005&agenda=3310&file=AMENDMENTS4-8.pdf.
[9] https://www.gov.ca.gov/2020/03/12/governor-newsom-issues-new-executive-order-further-enhancing-state-and-local-governments-ability-to-respond-to-covid-19-pandemic/.
[10] http://coag.gov/app/uploads/2020/03/FAQs-on-Open-Meetings-Law-and-Virtual-meetings-3.27.20.pdf.
[11] https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7B.pdf.
[12] https://governor.delaware.gov/wp-content/uploads/sites/24/2020/03/State-of-Emergency_03122020.pdf.
[13] https://dccouncil.us/covid-19-response-emergency-amendment-act-of-2020/.
[14] http://www.myfloridalegal.com/ago.nsf/Opinions/EF56BC8899447289852585300051BA33.
[15] https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-69.pdf.
[16] https://content.govdelivery.com/accounts/GAOAG/bulletins/2817a96.
[17] https://governor.hawaii.gov/wp-content/uploads/2020/03/2003109-ATG_COVID-19-Supplementary-Proclamation-signed.pdf.
[18] https://www.cityofeagle.org/DocumentCenter/View/2869.
[19] https://files.constantcontact.com/7e26563d001/3f814b35-4285-4449-bdb2-46e90013c03c.pdf.
[20] https://www.in.gov/gov/files/Executive_Order_20-09_Continuity_of_Government_Operations.pdf.
[21] https://governor.iowa.gov/sites/default/files/documents/Public%20Health%20Proclamation%20-%202020.03.19.pdf.
[22] https://ag.ks.gov/docs/default-source/publications/best-practices-to-aid-in-implementing-k-a-r-16-20-1-concerning-open-meetings-during-an-emergency-declaration(4753261-2).pdf?sfvrsn=9748ac1a_4.
[23] https://ag.ky.gov/Priorities/Government-Transparency/opinions/Opinions%20New/OAG%2020-05.pdf.
[24] http://www.ag.state.la.us/Files/Article/9743/Documents/AmendedOpenMeetingsGuidance.pdf.
[25] http://www.mainelegislature.org/legis/bills/bills_129th/billtexts/SP078901.asp.
[26] http://www.marylandattorneygeneral.gov/Pages/OpenGov/OpenMeetings/default.aspx.
[27] https://www.mass.gov/the-open-meeting-law.
[28] https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522173--,00.html.
[29] https://mn.gov/governor/assets/3a.%20EO%2020-20%20FINAL%20SIGNED%20Filed_tcm1055-425020.pdf.
[30] https://www.ethics.ms.gov/node/67.
[31] https://house.mo.gov/Bill.aspx?bill=HB2725&year=2020&code=R.
[32] https://ago.us20.list-manage.com/track/click?u=55bd24fd8f5e7d3dc227d1072&id=e49abdcdc8&e=eb1e3dcbe0.
[33] https://dojmt.gov/attorney-general-fox-issues-guidelines-for-conducting-public-meetings-during-state-of-emergency/.
[34] https://ago.nebraska.gov/news/attorney-general-guidance-executive-order-no-20%E2%80%9403-coronavirus-%E2%80%94-public-meetings-requirement.
[35] https://governor.nebraska.gov/press/gov-ricketts-issues-executive-order-give-public-boards-flexibility-hold-virtual-meetings.
[36] http://gov.nv.gov/News/Emergency_Orders/2020/2020-03-22_-_COVID-19_Declaration_of_Emergency_Directive_006/.
[37] https://www.governor.nh.gov/news-media/emergency-orders/documents/emergency-order-12.pdf.
[38] https://www.governor.nh.gov/news-media/press-2020/2020313-eo-2020-04.htm.
[39] https://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=A3850.
[40] https://www.newmexico.gov/2020/03/17/open-government-division-advisory-during-covid-19-state-of-public-health-emergency/.
[41] https://www.governor.ny.gov/news/no-202-declaring-disaster-emergency-state-new-york.
[42] https://www.governor.ny.gov/news/no-2021-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
[43] https://ncacc.sharefile.com/share/view/se43a241d1ed462da.
[44] https://attorneygeneral.nd.gov/open-records-meetings/open-meeting-requirements-during-covid-19-national-emergency.
[45] https://www.thisweeknews.com/assets/pdf/OH34616317.PDF.
[46] https://legiscan.com/OH/text/HB557/id/2171898/Ohio-2019-HB557-Introduced.pdf.
[47] http://webserver1.lsb.state.ok.us/cf_pdf/2019-20%20FLOOR%20AMENDMENTS/Senate/HB3888%20(3-16-20)%20(HOWARD)%20FS%20FA1.PDF.
[48] ORS 192.670, https://www.oregonlaws.org/ors/192.670.
[49] https://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2019&sind=0&body=H&type=B&bn=1564.
[50] http://www.governor.ri.gov/documents/orders/Executive-Order-20-05.pdf.
[51] https://www.sdmunicipalleague.org/vertical/Sites/%7B2540DC39-A742-459F-8CAF-7839ECF21E89%7D/uploads/Executive_Order_20-14_Open_Meetings.pdf.
[52] http://publications.tnsosfiles.com/pub/execorders/exec-orders-lee16.pdf.
[53] https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/Open%20Meeting%20Laws%20Subject%20to%20Temporary%20Suspension.pdf.
[54] https://www.texasattorneygeneral.gov/news/releases/governors-office-clears-path-governmental-bodies-meet-telephonically-or-videoconference-during.
[55] https://le.utah.gov/~2020/bills/static/SJR016.html.
[56] https://ago.vermont.gov/wp-content/uploads/2020/03/COVID-19-Open-Meeting-Law-Guidance.pdf.
[57] https://legislature.vermont.gov/Documents/2020/WorkGroups/Senate%20Government%20Operations/Bills/20-0948/Drafts,%20Summaries%20and%20Amendments/W~Tucker%20Anderson~DR%2020-0948,%20Draft%201.3,%203-18-2020,%20Temporary%20Open%20Meeting%20Law%20Provisions~3-20-2020.pdf.
[58] https://www.oag.state.va.us/files/Opinions/2020/Sullivan-Opinion-Request.pdf.
[59] http://mrsc.org/getmedia/4c439dc1-e20c-4098-88b0-b91fd52fe5ad/w3agcoronaopma.pdf.aspx.
[60] https://ethics.wv.gov/Pages/default.aspx.
[61] https://www.doj.state.wi.us/news-releases/office-open-government-advisory-coronavirus-disease-2019-covid-19-and-open-meetings.
[62] https://www.doj.state.wi.us/sites/default/files/news-media/3.16.20_OOG%20Advisory_COVID-19_and_Open_Meetings.pdf.
[63] https://www.wyomingnews.com/news/local_news/wyoming-press-association-issues-statement-on-public-meetings-amid-covid-19/article_e5bf3684-31b0-5d8f-bd91-9f1069be4c11.html.
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