As part of the enactment of the 2022-2023 State Budget, I am pleased to announce the enactment of permanent changes to the State Open Meetings Law.
During the emergency declared in response to COVID-19, state and local government utilized videoconferencing to conduct the business of government. We learned that public participation was greatly enhanced by the public’s ability to access their government through videoconferencing.
The State Assembly conducted a public hearing in the Fall of 2021 to hear from the public how to best retain those benefits of public participation once the declared emergency was over. It was recognized that while public participation was enhanced by remote public participation, permanent legislation must also ensure the ability of the public and the media to directly access government officials, in person. The legislation enacted in the State Budget balances both interests by enhancing the public’s ability to access government remotely, while still protecting the public right to directly petition their government representatives in person.
Under the new Open Meetings Law provisions, all state and local public bodies would be allowed to use videoconferencing to conduct so-called “hybrid” public meetings.
In order to hold hybrid meetings, the governing body of a county, city, town or village would have to pass a local law, or in the case of school districts, a resolution, following a public hearing, authorizing the use of videoconferencing. Governing bodies could authorize the use of videoconferencing for itself and all its committees or subcommittees or specify that each of its committees or subcommittees may make their own determination. In New York City, community boards would make their own determinations. The public body will also have to establish written procedures governing member and public attendance consistent with state law. Such written procedures shall be conspicuously posted on the public website of the public body.
Where hybrid meetings are authorized, at least a quorum of the public body must be physically present at the meeting. Members may participate remotely, as set forth in the local law or resolution and written procedures, where extraordinary circumstances prevent a member to be physically present. Such circumstances may include disability, illness, caregiving responsibilities, or any other significant or unexpected factor which precludes a member’s physical attendance.
If videoconferencing is used to conduct a meeting, the public body shall provide the opportunity for members of the public to view such meeting and to participate in proceedings via videoconference in real time where public comment or participation is authorized and shall ensure that videoconferencing authorizes the same public participation or testimony as in person participation or testimony.
The public body shall ensure that members of the public body can be heard, seen and identified, while the meeting is being conducted, including but not limited to any motions, proposals, resolutions, and any other matter formally discussed or voted upon. The minutes of the meetings involving videoconferencing shall include which, if any, members participated remotely and shall be available to the public. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location for the meeting where the public can attend. A local public body electing to utilize videoconferencing to conduct its meetings must maintain an official website. The public body shall provide that each meeting conducted using videoconferencing shall be recorded and such recordings posted or linked on the public website of the public body within five business days following the meeting and shall remain so available for a minimum of five years thereafter. Such recordings shall be transcribed only upon request. Open meetings of any public body that are broadcast or that use videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with the 1990 Americans with Disabilities Act (ADA).
For sixty days after the effective date of this new law, a public body shall be authorized to meet and take such action authorized by law without permitting in public-in-person access to meetings and authorize such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed. In other words, the current authority to hold virtual meetings without an in-person meeting will continue for 60 more days after the effective date of the new law.
After the 60-day transition period, virtual meetings may only be held during a state disaster emergency declared by the Governor, or a local state of emergency proclaimed by the chief executive of a county, city, village or town, if the public body determines that the circumstances necessitating the emergency declaration would affect or impair the ability of the public body to hold an in-person meeting.
No later than January 1, 2024, the Committee on Open Government shall issue a report concerning the application and implementation of the new law and any further recommendations governing the use of videoconferencing by public bodies to conduct meetings pursuant to this section.
The new law shall expire on July 1, 2024.