The outbreak of COVID-19 has caused unprecedented changes to our daily lives and stands to reshape the way that business is conducted for the foreseeable future. As communities throughout New York State reopen, municipalities and local governments are tasked with figuring out how to safely conduct meetings of public bodies (“public meetings”) and hearings at which members of the public can provide their views with respect to public business (“public hearings”). Executive Order 202.1, issued by Governor Cuomo on March 12, 2020 and thereafter extended, and Executive Order 202.15, issued by Governor Cuomo on April 9, 2020 and thereafter extended (collectively, “Executive Orders”), provide local governments with the flexibility to conduct public business in a way that is protective of public health and safety while respecting the need to openly conduct government business.1 Even as social distancing requirements are relaxed, the Executive Orders may provide an important option for those not yet able or willing to return to normal, in-person public meetings and public hearings. Further, as communities adapt to conducting business remotely, some of these elements of remote participation may become part of a “new normal” even after the COVID-19 pandemic subsides. As we enter this new phase of the COVID-19 pandemic, there are five important things to note about the Executive Orders with respect to public meetings and public hearings:

    1. Executive Order 202.1 continues to permit public meetings to be held remotely.

      Executive Order 202.1 modifies Article 7 of the Public Officers Law, otherwise known as the Open Meetings Law, to allow public meetings to be conducted remotely. Although the Open Meetings Law ordinarily permits public meetings to be conducted by videoconferencing, it requires that the public be notified of all locations at which the videoconference will be conducted and permitted to access any such venue. Now, with the modifications included in Executive Order 202.1, public meetings may also “be held remotely by conference call or similar service.” Additionally, the requirement for in-person physical access to the meeting site has been eliminated and, instead, Executive Order 202.1 merely requires that the public be provided “the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

    2. Executive Order 202.1 and Executive Order 202.15 make changes to public hearings.2

      Executive Order 202.1 refers generally to the Open Meetings Law, permitting “any public body to meet and take such actions authorized by the law.” While it mentions public meetings, it makes no explicit reference to public hearings. Notwithstanding such lack of specificity, many municipalities have relied on Executive Order 202.1 to conduct public hearings because public hearings are a type of public meeting, as that term is used in the Open Meetings Law. See Public Officers Law § 102(1) (defining public meeting as “the official convening of a public body for the purpose of conducting public business”) N.Y. Pub. Off. Law § 102(1) (Westlaw through L.2019 ch. 758 & L.2020 ch. 1 to 56, 58 to 88) (“any hearing held by a public body will necessarily constitute ‘conducting public business’ within the meaning of the Open Meetings Law … and must comply with the requirements of the O[pen]M[eetings ]L[aw]”); N.Y. State Dep’t of State Div. of Local Gov’t Servs., Conducting Public Meetings & Public Hearings, at 7 (reprint 2012) (revised 2008), https://www.dos.ny.gov/lg/publications/conducting_public_meetings_and_public_hearings.pdf. Such reading of Executive Order 202.1 is consistent with both its broad language, as well as other Executive Orders subsequently issued by Governor Cuomo. Notably, Executive Order 202.15 specifically addresses public hearings and expressly allows for municipalities and public bodies “to hold [a] public hearing remotely, through the use of telephone conference, videoconference, and/or other similar service,” and permits municipalities and public bodies to utilize such remote options for public participation. Such pronouncement mirrors, and is otherwise consistent with, the changes announced in Executive Order 202.1, further evidencing the broad applicability of Executive Order 202.1 to public hearings.

    3. Remote-access public meetings pursuant to Executive Order 202.1 require certain procedural protections.

      As a condition of allowing remote public meetings, Executive Order 202.1 requires “that the public has the ability to view or listen to” any public meeting conducted remotely. Although this does not include an express requirement for interaction between the public body and the general public, many of the technologies that can be used to facilitate viewing or listening are sophisticated enough to allow interaction, and can be used to facilitate remote participation, particularly in the context of a public meeting on a land use or zoning approval (i.e., site plan, special use permit, variance, etc.). Towards this end, the ability to view or listen to the meeting should be provided as contemporaneously as possible so that participants can have a remote-access meeting experience that closely mirrors the experience of an in-person meeting.

      Additionally, Executive Order 202.1 establishes a requirement “that [remote] meetings are recorded and later transcribed … .” Such recording and transcription requirements establish a detailed record of the proceedings that can later be made publicly available. Widespread dissemination of the recording and transcript can actually enhance the public’s ability to participate in public meetings and hearings beyond the traditional public meeting. This is made possible by allowing the public to view the public meeting or public hearing at a convenient time and utilize the transcript to formulate comments on the matter being discussed.

      Although not explicitly stated in Executive Order 202.1, consideration should also be given as to how to provide proper notice of any public meeting or public hearing conducted remotely. Effective notice should convey, at a minimum, how the public may access and participate in the public meeting or public hearing.

    4. Remote-access public meetings can be conducted in an efficient and productive manner.

      Since March—when the impacts from the COVID-19 pandemic became more widespread in New York State—many municipalities throughout the State have successfully transitioned to remote-access public meetings and public hearings. Using existing technology such as Skype, YouTube, WebEx and Zoom to facilitate public participation, these municipalities have been able to ensure the continuity of important public business. From these early adopters, certain best practices have emerged, revealing the importance of careful planning, technological proficiency and well-thought-out follow-up. By proactively preparing to participate in a remote-access public meeting or public hearing, applicants, local governments and the public can ensure that the public meeting or public hearing is just as effective, if not more so, than an in-person meeting.

    5. Remote-access public meeting components may be here to stay.

      Even as states reopen, ongoing public health concerns mandate a continued need for social distancing and continued flexibility in the application of the Open Meetings Law. In fact, the New York State Department of State Committee on Open Government has recommended that the modifications of Executive Order 202.1 be continued throughout the duration of the pandemic, and the Legislature is currently considering statutory changes to the Open Meetings Law that would permit a municipality or local government to hold a remote public meeting during any State disaster emergency through 2022. See Assemb. Bill, No. 10177, 2019 Leg., 243rd Sess. (N.Y. 2020). These changes highlight the importance of providing an alternative option for the public, particularly those most vulnerable constituents, to participate in public meetings remotely. As we transition to the post-COVID-19 world, remote-access meetings may prove an attractive option for participation that can be used in conjunction with more traditional meeting formats. For example, municipalities may choose to hold public meetings in person only, remote only or some combination of both. Anecdotally, municipalities and local governments that have implemented remote-access meetings and hearings have reported an increase in public participation fueled, in part, by the convenience of remote access. As such, constituents may welcome the option for remote access in addition to in-person meeting options.

Conclusion

The Executive Orders provide much-needed flexibility during a time of great uncertainty. Even as regions around New York State reopen, some of the hallmarks of the COVID-19 era may remain. In the case of remote-access meetings, the inherent convenience and proven efficacy of a remote-participation component may develop into a lasting part of the public-meeting and public-hearing process. As such, both local governments and applicants should monitor best practices for remote participation to make optimal use of this valuable tool.

Additional Assistance

For further assistance, please contact Kimberly R. Nason at (716) 504-5784, knason@phillipslytle.com; Kaitlin N. Vigars at (518) 618-1221, kvigars@phillipslytle.com; a member of the Coronavirus (COVID-19) Response Team; or the Phillips Lytle attorney with whom you have a relationship.

  1. At the time of publication, Executive Order 202.38 extended Executive Order 202.1 through July 6, 2020, and Executive Order 202.39 extended Executive Order 202.15 through July 7, 2020.
  2. To the extent that there are differing opinions on whether a public hearing is a public meeting for the purpose of Open Meetings Law, any outstanding question was resolved by the subsequent issuance of Executive Order 202.15, which more specifically discusses remote access to public hearings.