Complying with the Open Meeting Law (OML) in New York State can be perceived as a challenge for government bodies. To understand the hurdles OML presents for governments, small private firms and nonprofits might imagine a world where they have to alert the media, hang a flyer and post to their website three days in advance every time two or more of their members want to meet to conduct business. It can be a headache.
While these requirements are usually not too onerous, there has been confusion over how to adhere to the letter of the law during the COVID-19 outbreak with its attendant social distancing and lockdowns that prevent physical gatherings. In an effort to help some of our clients better understand the dos and don’ts of OML during the pandemic, we at Highland Planning have put together a brief primer on the subject.
A 202.1 “101”
Governor Cuomo’s Executive Order 202.1 provides some flexibility for governing bodies that need to meet the requirements of the OML at a time when health and safety precautions are preventing public gatherings. The New York Conference of Mayors (NYCOM) has a rundown on how government can hold meetings without the public being physically present. Given the stringency of social distancing measures, we’ll assume for most governing bodies that the third option listed is the preferred method: members of the public body meet via conference call or videoconference, with no shared in‐person location, and the OML requirements are met by allowing the public to listen to or view the meeting, recording the proceedings and transcribing the meeting minutes.
Governing bodies should note that rules around public notices for such meetings still apply. Meeting notices should be:
- Conspicuously posted in at least one public location
- Shared with news media via email or fax
- Posted to the body’s website (if applicable)
- Posted 72 hours in advance of the meeting (unless the topic at hand is an emergency matter)
New requirements for meeting notices include:
- Information on the technology that will be used to hold the meeting (e.g. Zoom, Skype, GoToMeeting, etc.)
- How the meeting can be accessed
- That the meeting is being conducted pursuant to Executive Order 202.1
To Meet or Not to Meet?
Now that compliance with the OML is clearer, many governing bodies may ask themselves if they want to proceed with business as usual. NYCOM recommends postponing all meetings that are not necessary for conducting essential government business. Certainly, for some communities, particularly extremely rural or impoverished ones with spotty internet and cell phone coverage, this may be the right choice.
However, at Highland Planning, we would suggest there is an alternative. Given the wealth of tools available to hold such proceedings, the potential post-pandemic benefits to the economy of getting projects shovel-ready today, and that the regulatory framework to hold virtual public meetings is now in place, we think moving forward with many public meetings is not only doable but advisable. For those governing bodies that feel they lack the technology or know-how to hold meetings in this fashion, we want to help.
The Bottom Line
We’re all guinea pigs in an unprecedented and hopefully short-lived society-wide experiment brought on by COVID-19. Public engagement techniques have to adapt to this new reality. Governing bodies should consider seeking legal counsel on issues surrounding the OML and the specifics of their situation. If you are determined to proceed with the business of government in a manner that is open, transparent and satisfactory to the public, Highland Planning is happy to lend a hand in support.
