For approximately the last six months, public boards subject to the Open Meetings Law (“public boards”) have been meeting solely via electronic means due to COVID-19 mass gathering restrictions and due to health and safety concerns. As our state continues to transition through various stages of “reopening,” members of public boards are either beginning to resume or contemplating resuming “in-person” board meetings. Members of public boards assume that by having an “in-person” board meeting, the Open Meetings Law requirements will be the same as they were pre-COVID-19. Some board members are even excited because they believe that they will be able to forego the “burdens” of remote meeting requirements imposed by Senate Bill 704. However, in a majority of circumstances, public boards should be aware that conducting “in-person” meetings while still under a declaration of emergency just may not be as simple as expected. Public boards should consider the following when planning to conduct or when conducting “in-person” board meetings during this declaration of emergency.
- Limited Meeting Capacity: The applicable Governor’s Executive Orders impose varying size limitations for “mass gatherings,” so public boards should be sure to comply with the maximum number of people allowed in a single confined indoor space that is applicable at the time of their “in-person” board meeting.
- Recommendations to Reduce Transmission: During the “in person” meeting, public boards should also be sure to impose the minimum recommendations for social distancing and reducing transmission delineated in the applicable Executive Order. Public boards should also be sure to provide these protocols to board members and necessary attendees in writing prior to the meeting.
- The “In-Person” Meeting Could Still Be a Remote Meeting (potentially): While there may be board members who will attend the “in-person” meeting, inevitably, there will be at least one board member participating in the “in-person” meeting via conference telephone or other electronic means. If at least one person participates via any electronic means, the meeting is still a remote meeting even if a majority of the board members are attending the board meeting in person. YES! You read correctly. One board member participating electronically turns the entire public board meeting into a remote meeting. Senate Bill 704 (G.S. 166A-19.24(i)(3)) defines remote meeting as “an official meeting, or any part thereof, with between one and all of the members of the public body participating by simultaneous communication.” Senate Bill 704 (G.S. 166A-19.24(i)(4)) defines simultaneous communication as “any communication by conference telephone, conference video, or other electronic means.” Thus, if at least one board member participates via electronic means, the meeting is a remote meeting under Senate Bill 704.
- Remote Meeting Rules Still Apply (potentially): If the meeting is a remote meeting, the board will have to comply with the same requirements imposed when the board only met via electronic means, i.e. roll-call votes, those participating via electronic means identifying themselves when speaking, livestreaming, having the minutes identify when board members join and leave when participating electronically, etc.
- The Livestreaming Requirement: Senate Bill 704 (G.S. 166A-19.24(b)(9)) dictates that remote meetings “shall be simultaneously streamed live online” unless the meeting is conducted by conference call. While it may seem strange that this requirement would apply to a meeting being conducted “in person,” the fact that at least one board member participates in the “in-person” meeting via electronic means makes the meeting a “remote meeting” under Senate Bill 704. Senate Bill 704 requires remote meetings to be livestreamed unless the meeting is conducted by conference call. Therefore, since the meeting is an “in-person” meeting and not conducted by conference call, if any board member is going to participate via electronic means, the board will need to ensure that the “in-person” meeting is livestreamed.
- The Public Meeting Notice: To be sure not to violate the mass gathering limitations, I advise the board to ensure that the public meeting notice excludes the physical location information and only includes the meeting connection and livestreaming information. This way, only board members and necessary staff would be at the “in-person” meeting to ensure adherence to the mass gathering limitations.
- Posting agenda items: Since the board will be meeting “in person,” if the agenda and meeting materials cannot be shared with the public electronically during the meeting, the board will need to ensure that the agenda and meeting materials are available to the public in an easily accessible manner on the public board’s website prior to the meeting. This is necessary to comply with Senate Bill 704 (G.S. 166A-19.24(b)(6)).
- Public Comments: While the meeting will be “in person,” members of the public will not be able to be physically present in the meeting due to the limitations on mass gatherings. For public boards who hear public comments, in the event there is a member of the public who wants to address the board during the public comment period, the board should be sure to provide a mechanism by which the public has the ability to speak to board members during the public comment section of the agenda.
- Closed session: If the public board needs to go into closed session and there are board members participating electronically, boards should provide a separate phone number or separate link for board members to use for the closed session portion of the meeting. The public board should ensure that the board members participating electronically are not sharing the same platform or numbers as the public during the closed session portion. It is best for public boards to use a number or a link that has not been provided to the public to ensure confidentiality.
These are a few items public boards should consider and plan for as they resume “in-person” meetings. Thinking through these scenarios and planning ahead will help public boards stay in compliance with the Open Meetings Law and Senate Bill 704 requirements.