New York Moves Closer to Allowing Hybrid Meetings for Public Bodies: Open Meeting Laws Still in Flux
September 21, 2022
I previously wrote in August 2021 about temporary changes to the open meeting laws in New York State due to the COVID-19 pandemic (“The Shifting Rules of Virtual Meetings in (Post) Pandemic Times”). Previous measures adopted by the legislature had amended the Business Corporation, Not-for-Profit Corporation, and the Religious Corporations Laws to temporarily allow eligible entities to conduct business and hold board meetings virtually unless specifically restricted by certificate of incorporation or by-laws, until the end of the declared state of emergency in New York, or December 31, 2021, whichever came later.
The rules governing open meeting provisions of public bodies under the Public Officers Law have been more complicated. Former Executive Orders 202 through 202.111, issued by former Governor Cuomo between March 2020 and June 2021, explicitly suspended Article 7 of the Public Officers Law requirement that meetings be held in person. This provision applies to municipal boards and committees, including zoning boards of appeal, school boards, and numerous other local groups. When then-Governor Cuomo allowed former Executive Order 202 to expire on June 25, 2021, those local groups had to pivot to hold public meetings in person once again.
But that requirement only lasted until September 2, 2021, when Governor Hochul signed into law Chapter 417 of the Laws of 2021, which permitted most public bodies to hold meetings remotely, and mirrored the language of former Executive Order 202.1. This provision was set to expire on January 15, 2022.
When the omicron variant caused a surge of cases in winter of 2021, Governor Hochul issued Executive Order 11, again placing New York in a disaster state of emergency. Executive Order 11 was much more limited in scope that former Executive Order 202.1 and its extensions and did not affect any provisions of the Public Officers Law. However, on January 14, 2022, just prior to the January 15 expiration of Chapter 417 of the Laws of 2021, Governor Hochul signed into law Chapter 1 of the Laws of 2022, amending Chapter 417 of the Laws of 2021 to again authorize most public bodies to hold public meetings remotely, until such time as Executive Order 11 ceased to be extended.
Last Monday, September 12, Governor Kathy Hochul quietly allowed the COVID-19 state of emergency expire. When then-Governor Cuomo first suspended the emergency order in June 2021, he marked the event with multiple fireworks displays across the state. Governor Hochul, in contrast, made no announcement, but mentioned she was allowing the state of emergency to expire in comments to a reporter.
However, in what is surely just one of the permanent changes to government practice brought about by the pandemic, the legislature amended the Open Meetings Law in April 2022 to allow expanded use of videoconferencing for public meetings in the absence of a declared state disaster emergency. Public Officers Law §103-A. With the expiration of Executive Order 11, this law now takes effect.
The new provision does not permit fully remote meetings, but rather authorizes “remote participation” by one or more members of the public body “due to extraordinary circumstances” such as disability or illness, or “any other significant or unexpected factor which precludes the member’s physical attendance at such meeting.” Public Officers Law §103-A(c). A quorum of members of the public body must still be physically present at a location where the public can also attend, and the video-conferencing facilities provided must be available to for the public to participate remotely as well. Finally, this provision is not automatically available to all public bodies; the governing board of a county, city, town or village must adopt a local law authorizing videoconferencing and providing written procedures to comply with § 103-A and must either provide that its committees and subcommittees may follow the same procedure, or that each must adopt its own procedure. This requirement doesn’t apply to community boards within a city with a population of one million or more; those boards may make their own determinations on whether to adopt a policy to allow for videoconferencing consistent with the new law.
Section 103-A is scheduled to sunset on July 1, 2024, but the law also provides that the committee on open government will issue a report on the application and implementation of the videoconferencing law, and further recommendations for its use by public bodies by January 1, 2024. Presumably, if hybrid meetings are successful at the local level, the legislature will adopt a permanent law permitting them, and will establish a cohesive set of policies and procedures for public bodies to follow.
The above highlights the importance of having competent counsel to advise municipalities and the various boards and committees that constitute “public bodies” under the law. With the constantly changing rules on remote and hybrid meetings, it would be easy to run afoul of the open meetings law despite good intentions. Localities will have to assess whether the technological and communication challenges presented by these hybrid meetings are worth the payoff of potentially great public participation in meetings, and better attendance by board and committee members.