As part of the 2022 adopted State Budget, the New York State Legislature amended the Open Meetings Law (Public Officers Law § 100, et seq.) to authorize public bodies to conduct meetings using videoconference technology through June 30, 2024. Videoconferencing was commonly used by public bodies during the pandemic because the public was prohibited from attending government meetings in person. The new law allows for the continued use of videoconferencing when conducting public meetings, but this authorization is subject to much stricter requirements.
For purposes of the Open Meetings Law, a “meeting” is the official convening of a public body for the purpose of discussing public business. Whenever a quorum of a public body gathers for the purpose of conducting public business, the Open Meetings Law requires that the meeting be noticed and the public allowed to attend and observe the meeting in person, except for a portion of the meeting that is in executive session. Section 103(c) of the Public Officers Law previously authorized a public body to use videoconferencing to conduct its meetings, but only if the public was permitted to attend, listen and observe the meeting at any remote location where videoconferencing was used.
New Requirements for the Use of Videoconferencing
As of April 9, 2022, public bodies wishing to conduct meetings by videoconference must comply with the new requirements set forth in Public Officers Law § 103-a. A public body may use videoconferencing provided that the public can attend, listen, and observe the meeting in at least one physical location at which a member participates and a quorum of the members are present in either the same physical location or in multiple locations where the public is permitted to attend. In addition, the following criteria must be met:
- The local government must adopt a local law, or an individual public body must adopt a resolution, following a public hearing authorizing the use of videoconferencing for itself and its committees and subcommittees, or specifying that each committee or subcommittee can make its own determination.
- The public body must adopt written procedures governing member and public attendance consistent with Public Officers Law § 103-a and post those procedures on the public body’s website.
- Members of the public body must be physically present at one of the meeting locations where the public can attend in person unless the member is unable to be physically present due to extraordinary circumstances, as set forth in the public body’s adopted meeting procedures, such as disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member’s physical attendance at such meeting. Members of a public body do not have a right to attend meetings remotely, but may participate remotely by videoconference only at the discretion of the public body.
- The public body must ensure that members of the public body can be heard, seen, and identified while the meeting is being conducted, except in the case of executive sessions.
- The minutes of meetings involving videoconferencing must include which, if any, members participated remotely and must be made available to the public.
- The public notice for the meeting must inform the public that videoconferencing will be used, where they can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location(s) where members of the public body will be participating in the meeting and where the public can attend the meeting in person.
- The public body must record each meeting that uses videoconferencing and such recordings must be posted or linked to the public body’s website within five business days of the meeting, kept for a minimum of five years thereafter, and recordings must be transcribed upon request.
- The public body must provide the opportunity for members of the public to view the meeting by video. At meetings where public comment and participation is authorized, members of the public must be able to participate in the proceedings by videoconference in real time and with the same opportunities for participation and testimony as in-person participation and testimony.
- A public body electing to utilize videoconferencing to conduct its meeting must maintain an official website.
Where public meetings are broadcast or use videoconferencing, the technology used must permit access by members of the public with disabilities in a manner consistent with the Americans with Disabilities Act.
Local Discretion During Emergencies
The new law includes an emergency exception to the in-person requirement associated with videoconference meetings if the Governor has declared a state of emergency or the local chief executive has declared a local state of emergency. However, notwithstanding a State or local emergency declaration, the decision to waive the in-person meeting requirement is left to the discretion of the local public body after assessing whether the circumstances would affect or impair its ability to hold an in-person meeting.
Transition Period and Expiration
The legislation includes a 60-day transition period ending on June 8, 2022, during which a public body may continue to conduct meetings using the remote meeting procedure that was authorized during the pandemic by Executive Order 202.1 and Chapter 1 of the Laws of 2022. The law contains a sunset provision stating that the new regulations will expire and be deemed repealed on July 1, 2024. Prior to that date, the law requires that the Committee on Open Government issue a report to the Governor, the leaders of the Senate and Assembly and others, concerning the application and implementation of the law and any further recommendations governing the use of videoconferencing for public meetings.
While the use of videoconferencing to conduct public hearings is authorized by the Open Meetings Law, the rules for doing so are stricter than those put in place during the pandemic. Accordingly, local governments and public bodies should consult with their municipal attorneys prior to allowing its members to participate in meetings remotely. If you have questions about the new law, please contact Anthony S. Guardino (631.367.0716) or any member of the firm’s Land Use and Municipal practice group.