As states shut down normal operations in response to the novel coronavirus (“COVID-19”), governors and state attorneys general across the country have offered guidance to local governments about how to balance state laws emphasizing open meetings, while these same officials are taking action to halt public gatherings. To date, 24 states have weighed in on how their governments will conduct “the public’s business” in the public eye, despite the increasing precautions that these same states are enforcing in regard to public meetings.
As but a few examples, recognizing how their current laws fail to provide the mechanisms necessary to conduct business electronically, Ohio is just one state that has taken measures to enact new legislation to allow open meetings to be held via teleconference or video conference when the governor has declared a public health emergency. Others, like Kentucky Attorney General Daniel Cameron, have read their states’ 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 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.
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” – a seven-day period to highlight the importance of open government policies. But this year, Sunshine Week occurred from March 15 through 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 could 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 many-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 that 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 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 non-emergency business must continue to prevent our democracy from grinding to a halt.
So far, 24 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 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 permits public bodies to “hold a remote meeting through technological means” so long as the public is given advance notice.
California. Gov. Gavin Newsom issued Executive Order N-25-20 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.
Connecticut. By Executive Order No. 7B, 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.
Georgia. Attorney General Chris Carr advised 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.
Idaho. Gov. Brad Little amended 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 that the requirement of in-person attendance and the limitations on when remote participation is allowed for public meetings are suspended.
Kansas. Attorney General Derek Schmidt issued a “best practices” guide to public bodies and agencies that must implement Kansas’s Open Meetings Act regulations. Attorney General Schmidt advised that public bodies should utilize audio or video technology and post online notices describing their 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 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 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.
Maryland. Attorney General Brian Frosh provided informal guidance 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 suspended certain provisions of the Commonwealth’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 their proceedings.
Michigan. On March 24, Gov. Gretchen Whitmer issued 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, 2020.
New Jersey. On March 16, the New Jersey legislature passed 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 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.
North Dakota. Attorney General Wayne Stenehjem advised 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 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 introduced House Bill 557 to allow public bodies to meet by video conference during a health emergency.
Rhode Island. On March 16, by executive order, Gov. Gina Raimondo relieved public bodies from the prohibitions regarding use of telephonic or electronic communication to conduct meetings in the State’s Open Meetings Act.
Tennessee. On March 20, Gov. Bill Lee issued Executive Order No. 16 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, 2020.
Texas. On March 16, Gov. Greg Abbott approved Attorney General Ken Paxton’s request 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.”
Vermont. Attorney General T.J. Donovan advised 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 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 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 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 permits agencies to evaluate additional means for public attendance, referencing the possibilities of utilizing real time streaming or audio and video conferencing.
Wisconsin. Attorney General Josh Kaul published the Wisconsin Department of Justice’s Office of Open Government advisory statement 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.