Yesterday morning Governor Andrew M. Cuomo announced that the State of Emergency declared on March 7, 2020 will expire at midnight tonight, June 24, 2021. This also terminates the Executive Orders the Governor issued to assist with managing business during the pandemic. While the news is overall a positive development, the abrupt termination is wreaking havoc on the municipal and business world with respect to how to immediately comply with laws that have not been applicable for well over a year. This article touches on only one aspect, the obligation of municipalities to immediately comply with the requirements of the Open Meetings Law.
Pursuant to Executive Order 202.1, boards and agencies were allowed to hold public meetings via telephone or videoconferencing without complying with all the requirements set forth in the Open Meetings Law. This Executive Order was extended multiple times, usually on the day of its expiration, with the last extension through July 5, 2021. With the Governor’s announcement yesterday, however, the Executive Order expires tonight at midnight.
Municipalities must immediately return to in-person meetings and allow the public access to observe such in-person meetings. Should a board member wish to participate via videoconferencing, the municipality must comply with the requirement in the Open Meetings Law related to such use. Prior to the Executive Order, it was uncommon for municipalities to utilize the videoconferencing option. Now that boards have adapted to virtual meetings, however, there will be a focus on the most challenging requirement in the Open Meetings Law for legally allowing such videoconferencing – the requirement to notify the public of the location from which a board member will be videoconferencing and, more importantly, the obligation to allow the public, including the media, to observe the board member at the videoconferencing location. This obligation was eliminated as part of the Executive Order for obvious reasons.
It remains legal for the public to observe and participate in meetings via videoconferencing, but the public must also be allowed to participate in-person with the board.
We expect there will be developments and clarity in the upcoming days, weeks and months. Given the tenet of the Open Meetings Law to allow the public unfettered access to observe the business of municipalities, it is unlikely the obligations associated with the use of videoconferencing will be substantially changed through amendments to the Open Meetings Law. We do expect, however, that there may be additional guidance on videoconferencing and other technology related requirements in the Open Meetings Law, including the obligation to provide a live stream of the meetings for the public “to the extent practicable.” It will prove difficult to argue that such live streaming is impracticable if it occurred during the extensive State of Emergency. Changes to the Open Meetings Law will likely be only one of many legal changes resulting from the expiration of the State of Emergency due to Covid-19.
The attorneys at Hancock Estabrook, LLP continue to monitor and offer advice on the anticipated numerous legal issues that will be manifested in the coming weeks as a result of the expiration of the pandemic State of Emergency.