The North Carolina open meetings law gives the public a right to attend official meetings of public entities and require public entities to provide notice of and access to official meetings. Amid the current threat posed by COVID-19 when gatherings of people pose major health and safety concerns, complying with “open meetings” while protecting the public is proving to be a challenging issue for councils and boards. The Governor, mayors, and county officials do not have the authority to waive, suspend, or modify obligations under the open meetings law even under a state of emergency or local state of emergency. Local governments are turning to virtual platforms to conduct meetings and public hearings to comply with open meeting laws, including conducting meetings by conference telephone or other electronic means, and social distancing guidelines from the CDC and orders from government leaders.
We are in unchartered territory with COVID-19, and it is not entirely clear under the statutes whether electronic meetings satisfy all the requirements of open meetings laws. However, it is clear that any move to electronic meetings is not an effort to exclude the public, but a difficult decision made to protect board members and the public from spread of the coronavirus. It is also a step taken in compliance with Governor Cooper’s ban of gatherings of 50 or more people, including local government board meetings, and President Trump’s recommendation against gatherings of 10 or more people.
According to the North Carolina Court of Appeals, the open meetings laws are satisfied as long as the public body takes “reasonable measures” to accommodate members of the public, even if some of them are not actually able to attend. A Court would likely consider an electronic meeting a reasonable measure to accommodate the public and provide access to official meetings considering the public health and safety concerns. Especially if the public entity took as many steps possible to make the public aware of the meeting and to provide electronic or telephonic access to the public.
If a meeting is conducted by electronic means, then N.C.G.S. § 143-318.13 will apply:
§ 143-318.13. Electronic meetings; written ballots; acting by reference. Electronic Meetings. – If a public body holds an official meeting by use of conference telephone or other electronic means, it shall provide a location and means whereby members of the public may listen to the meeting and the notice of the meeting required by this Article shall specify that location. A fee of up to twenty-five dollars ($25.00) may be charged each such listener to defray in part the cost of providing the necessary location and equipment.
A few options local governments can take to try and comply with open meetings laws if conducting meetings electronically to provide a location and for the public to listen to the meeting include:
- Livestream the meeting online;
- Provide a conference call-in number so residents without internet access can listen to meeting;
- Waive any fees for the public to listen or watch the meeting;
- Provide a link or call-in number for public session and a separate call-in or link for any closed session so both can be maintained simultaneously to accommodate pubic business verses closes session business.
To meet the public notice requirement, use the methods of public notice reasonably available, including posting on the website and sending notice to email lists and lists of media who have requested notice.
Another consideration for electronic meetings is how to handle public comment. Under the current circumstances, a court would likely consider a sign up for people to provide their public comment by phone call, video, or email a reasonable accommodation under the circumstances to allow the public to make comments to the board.
When turning to electronic meetings, local governments will improve their chance of avoiding major legal consequences by taking steps to show they were making the meeting as transparent and open as they could under the circumstances. Even though it may require more leg work for Board members to conduct meetings this way, the extra effort now should pay off in the long run.