COVID-19: Meetings and Public Hearings Under the Coronavirus State of Emergency

Posted on March 19, 2020

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Meetings and Public Hearings Under the Coronavirus State of Emergency

Frayda Bluestein, UNC School of Government

(Note from ELGL: Most of this is specific to North Carolina’s authorizing statutes; however, much of it will be very similar across states and the big questions – about remote meetings, quora, and voting – are valid regardless of state.)

This blog focuses on how local governments can do business and comply with both state law and the state guidance to avoid public gatherings. It also looks at how individual public officials can self-quarantine and practice social distancing, and still carry out their officials duties.

Is there anything in the Governor’s Executive Order or anything else that has waived, suspended, or modified the statutory obligations under the open meetings law?

As of this writing, there is none. I’ve surveyed multiple legal experts and the general conclusion is that the Governor does not have the authority to waive statutory requirements even under a gubernatorial state of emergency declaration. Instead, the guidance from the state is to cancel, postpone, modify, and avoid gatherings of 100 people or more, and NCDHHS has provided additional information for managing gatherings of 100 people or less. Mayors and county board chairs don’t have the authority to waive statutory requirements either, even if they’ve declared a local state of  emergency. So the discussion below assumes that local governments must comply with the open meetings law, and provides suggestions for what might be considered reasonable accommodations, if the letter of the law cannot be met.

Can our board meet electronically?

This is an open question of law and the language in the statutes is open to multiple interpretations. The open meetings law requires public bodies to provide notice of and access to “official meetings. “Official meeting” includes “the simultaneous communication by conference telephone or other electronic means.” It’s possible to interpret the statute’s mention of a conference call or other electronic means of gathering as a delegation of authority for electronic participation for all public bodies, including local governments. This interpretation is not universally accepted, however. The statute applies to all types of public bodies, and it clearly implies that at least some types of public bodies that have inherent authority, such as state agencies, may lawfully conduct electronic meetings, and that they have to comply with the procedure for providing access.

But it’s not clear that the intent of the law was to authorize the use of electronic meetings for other public bodies that don’t have such inherent authority. In the bulletin available here I explained why a court might not interpret the open meeting law’s provisions for electronic meetings as authorization for local government boards to meet electronically. Local governments lack inherent authority, and a court might require more evidence of specific authority than the open meetings law definition of an official meeting. To make matters more complicated, the city voting and quorum statutes make reference to members having to be “present” and “physically present.”

Here’s my recommendation: If it is absolutely necessary for a city council or board of county commission to meet and it is not feasible to cancel the meeting (see below about canceling meetings), and it’s impossible or unsafe to meet in person, I think meeting electronically is a reasonable choice.  If possible, it would be best to have at least a quorum present in person. I believe the risk of a violation of the open meetings law is low in this situation. Although someone might file a lawsuit, I think a court would consider this to be a reasonable response to the public health and safety needs at this time. Examples of electronic options include conference calls, video options such as Zoom, and Skype or some other streaming platform.

Local government boards of all kinds meeting electronically should follow the procedures for electronic meetings under the statute set out below. I suggest that local governments waive the fee, and if it’s impossible to satisfy the statutory notice requirements, I suggest that they use any method of public notice reasonably available, including posting on the unit’s website and sending notice to email lists and lists of media who have requested notice.

§ 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, [for example Zoom or Skype] 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.

Read more at Coates’ Canons (published by the UNC School of Government) here.

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