Given the impact and uncertainty of COVID-19, this firm has prepared the following information and guidance for public entities to utilize in connection with scheduled public meetings.
The Division of Local Government Services has provided the following direction regarding public meetings:
- Pursuant to N.J.S.A. 40:4-6, et. seq. ("Open Public Meetings Act" or "Act"), public meetings may be held in person or by means of communication equipment, N.J.S.A. 40:4-8(b), to include streaming services and other online meeting platforms. All meetings, including those held using communication equipment, must be noticed in a manner consistent with the requirements of the Act, unless the meeting is for emergent circumstances and held in a manner consistent with the requirements set forth at N.J.S.A. 40:4-9(b).
- Local units should also provide guidance to the public for remotely accessing and providing comment at a meeting.Our firm has prepared the following standard notice that can be utilized for other governmental meeting platforms:
The President of the United States, by the authority vested in him by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5), has heretofore proclaimed that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. Pursuant to this declaration, and given the recent attention to the potential impacts of coronavirus, and as a general precaution to remind local governmental units of options available to ensure the continued regular operation of local government [Executive Order 103 (Murphy 3/9/2020) and Executive Order 107 (Murphy 3/21/20)], and the mechanisms that have been used by local governments during weather events and other circumstances that render in-person meetings less than optimal, the [Public Body] meeting scheduled on [Date and Time of Meeting]will now be held via telecommunications. Members of the public will be able to attend virtually and a public comment period will be provided. Please log on to the [Public Body's] website at [Web Address] for the [Link to the meeting or conference call-in number]. If you have any questions, please call [Board Secretary/ Clerk] at [Board Secretary/ Clerk Phone Number]. There are no changes to the previously advertised budget. Formal action will be taken.
- Executive Order 107 issued Saturday, March 21, by Governor Phil Murphy expands restrictions on public outings, closes all non-essential retail businesses, prohibits gatherings for parties and celebrations, and requires all New Jersey residents to remain at home or their place of residence with limited exceptions. Attending public meetings is not an exception to Executive Order 107.
- The Governor also has recently signed into law emergency Assembly Bill 3850 (P.L. 2020, c.11) which streamlines the process for telephonic meetings, but it appears limited to meetings that are of an emergent nature and that are necessary for the ongoing basic functioning of local government.We submit the law currently allows for meetings other than those of an emergent nature so long as the guidance herein is followed – but we are in unchartered waters and a court of law could take a different view.Rely upon your own legal counsel on a case by case basis for guidance.
- Local units are reminded that they are required to provide a means of public comment even if a meeting is held remotely. We submit that this can be conducted online or by telephone if the public is alerted to that in the public notice of hearing (see above).
- Further, if a local unit currently records the audio or video of its meetings, we recommend that it continue to record a remote meeting.
- Local units holding meetings remotely are advised to avoid entering executive or closed session unless the topic of concern is urgent, directly affects the health, safety, or welfare of residents, and is an allowed exception as listed in N.J.S.A 10:4-12, given the difficulty of ensuring only appropriate individuals are on the line during a separate session. If an executive or closed session is necessary, local units must use a mechanism that ensures the confidentiality of closed session. To this end, after announcing the executive or closed session at the public portion of the meeting consistent with the Act, a local unit may consider using a separate, nonpublic, dial-in mechanism for the executive or closed portion of the meeting.
Virtual Meetings' under the Open Public Meetings Act
Pursuant to the information contained above and in consideration of the applicable provisions of the Open Public Meetings Act, the following guidance is also provided for the scheduling of electronic or 'virtual' meeting using an online portal such as Zoom or GoToMeeting.
- During the period of time where no members of the public are permitted to attend a meeting in person and the full membership of the local unit intends to participate in the meeting virtually, notice should be published indicating that the meeting will be virtual and including instructions on how the public can participate remotely. The meeting should follow regular meeting procedures, including normal public comment. Except for emergency meetings held pursuant to Assembly Bill 3850, if time constraints make such public notice impossible, the public must be allowed to attend the noticed physical location of the meeting, where they must be able to participate fully via communication equipment as if it were a normal meeting. Where such is otherwise prohibited by virtue of Executive Order #107 and time constraints prohibit timely public notice, the meeting should be rescheduled to a date that allows for proper, timely notice to be provided.
- Whenever the public is permitted to attend in person but less than the full membership of the local unit intends to participate in person, the meeting still must be conducted following virtual meeting protocols, either by speakerphone or videoconferencing equipment.In this event, it is critical that all members of the public body that are present be able to participate fully in all discussions. The communication equipment in the meeting room should have a "speaker phone" or be otherwise audible to all members of the public body and the members of the public physically present. The meeting also must provide for participation of the public by electronic or virtual means according to the guidance described herein. The meeting should follow regular meeting procedures, including normal public comment.
- For all virtual meetings, the public must be provided with a remote participation option, such as the ability to call in on a provided teleconference line with questions or comments. If the meeting is live-streamed over the internet, the public should be provided the ability to e-mail questions or comments to be read aloud during the public comment portion.
- For meetings of a Planning Board or Zoning Board of Adjustment, an application for development requires audio and video components, as visual contact with witnesses and exhibits is necessary. If the video equipment does not allow the board member to see the witnesses and exhibits under consideration, the board member is not "present" within the meaning of the MLUL and the OPMA for purposes of participating.
- Executive sessions should be avoided unless absolutely necessary. If executive session must occur, a secure platform should be utilized to ensure no member of the public participates.
- The Board should pass a Resolution permitting these changes to the meeting format given the current public health emergency.
- All non-mandated presentations should be postponed to a later date.
This information is subject to any additional Federal, State, or Locally issued rules or orders that may be issued in the coming days and weeks, including curfews and prohibitions on large gatherings. If you should have any further questions or concerns about public meetings or anything else in the coming weeks, please do not hesitate to contact our firm.