On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order 202 (the “Order”)1. The Order found that “a disaster is impending in New York State, for which the affected local governments are unable to respond adequately” and, as a result, the Governor exercised his executive authority and declared “a Disaster Emergency in the State of New York.” Accordingly, the Governor invoked Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify Article 7 of the Public Officers Law, section 41 of the General Construction Law, and section 3002 of the Public Health Law “to the extent necessary to permit the Public Health and Health Planning Council and the State Emergency Medical Services Council to meet and take such actions as authorized by law, as may be necessary to respond to the COVID-19 outbreak, without meeting quorum requirements or permitting the public in-person access to meetings, provided that any such meetings must be webcast and means for effective public comment must be made available.”
In other words, the Order purports to suspend the “in-person” and quorum requirements of the Open Meetings Law for certain public health entities only, and only as may be necessary to respond to the COVID-19 outbreak. The Order was intended to ensure that such entities could continue to conduct necessary business during this period of public health concern. The Executive Order states that the suspension of those requirements is contingent on (1) such meetings being webcasted and (2) effective means being taken to facilitate public comment.
Although, at first, open government advocates may be concerned about this purported suspension of the “in-person” and “quorum” requirements of the Open Meetings Law, the scope of the Order appears to be limited.
Following the Governor’s emergency declaration and Order, the New York State Committee On Open Government (the “COOG”) issued a guidance regarding the Open Meetings Law’s “In-Person” requirement as it relates to the Novel Coronavirus (the “Guidance”). The Guidance was issued in response to multiple inquiries regarding whether public entities may obtain a “waiver” of the requirement that the public be permitted to attend open meetings “in-person” in light of concerns about the novel coronavirus (also known as “COVID-19”).
The COOG’s Guidance emphasizes that, when drafting the Open Meetings Law (the “OML”), the New York State Legislature did not anticipate the potential need for exceptions to the “in-person” requirement. Accordingly, the Guidance admits that the “Committee does not have jurisdiction to grant waivers from legal requirements … [because] there is no provision for obtaining a ‘waiver” [from the ‘in-person’] … requirement under the law.”
As this is a developing issue, New York courts have not yet addressed whether the purported “suspension” of the “in-person” requirement is permissible. Nevertheless, the Committee’s Guidance takes the position that “judicial review of an alleged violation of the OML by a public body will take into consideration that body’s desire to protect public health while continuing to perform necessary government functions. Under such circumstances, though, the staff of the Committee recommends that if any public body determines that limiting public in-person access to an open meeting is necessary given the current public health threat, those bodies should otherwise comply with the provisions of the OML regarding making meetings public through technology and also limit discussions and actions taken to those matters for which harm would be caused by delay in order to mitigate potential impact on constituents.”
As the Open Meetings Law does not provide a statutory basis for suspending the “in-person” requirement, and because courts have not yet weighed-in on whether the Governor’s Order purporting to suspend that requirement is legally permissible, Public Bodies should be very cautious to ensure that they do not violate the Open Meetings Law. Accordingly, any reliance on the Committee’s Guidance and/or the Order should be narrowly construed and applied in a limited and responsible manner, taking into account the legal risks involved in taking actions that appear to contravene statutory language.
If Public Bodies are concerned about the impacts of open meetings on public health, such bodies should consider seeking and following the advice of public health experts, even if that means cancelling or rescheduling non-essential open meetings. This would be especially appropriate if the issues to be addressed are not urgent and do not relate to public health/safety or necessary government functions. By working with medical professionals, public health experts, lawyers, and relevant government entities, public bodies can help reduce the risks to their community while ensuring that they comply with the law.
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