RAQs: Recently Asked Questions

Topic: Open Meetings Law and COVID - 12/14/2020
A member of my board of trustees would like for us to meet in person. There would be 9 people in t...
Posted: Monday, December 14, 2020 Permalink

MEMBER QUESTION

A member of my board of trustees would like for us to meet in person. There would be 9 people in the room. They wanted to know if allowing the meeting to be simultaneously on Zoom would satisfy the requirements of open meetings law even though only one member of the public would be able to be physically present in order to stay under the 10-member cap for small gatherings.

WNYLRC ATTORNEY'S RESPONSE

Since the onset of the pandemic, we have had two questions about the impact of Executive Orders on the Open Meetings Law.

The first question, back in March 2020 (remember March 2020?  Ugh.), led to this advice:

... the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.

Of course, by Fall 2020, we all became experts at these modified proceedings, and were asking refined questions like:

How long does a library (public or association) or a cooperative public library system have to keep the recording of board or committee meetings?

(Answer: until transcribed.)

This brings us to December, 2020.

On December 2, 2020, the Governor issued Executive Order 202.79,[1] continuing the suspension and temporary modification of the Open Meetings Law through January 1, 2021.[2]  So here we are, still meeting under modified circumstances.[3]

Which brings us to the member's question:

[Does] allowing the meeting to be simultaneously on Zoom ... satisfy the requirements of open meetings law even though only one member of the public would be able to be physically present in order to stay under the 10-member cap for small gatherings[?]

Answer: Yes.

Here is why I can answer this question with one-word confidence.

Back in August, 2020 (remember August, 2020?  Slightly less "ugh.") the Executive Director of the State Committee on Open Government, realizing that different areas have different COVID numbers and are facing different Open Meetings Law compliance challenges, wrote in an Advisory Opinion:[4]

...if a public body is convening an essential meeting, the body must ensure that it adheres to social distancing, masking, and any other administration requirements, and if there is any question about whether it is able to maintain a safe space in which to hold an essential open meeting, it must provide a contemporaneous video or audio broadcast such that members of the public who cannot safely attend in person “ha[ve] the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

Further, the Advisory Opinion went on to emphasize that room capacity and safety concerns should not impede public access to an OML-accessible meeting. "[A] public body may not artificially limit attendance at its meetings – to do so would not be consistent with the requirements of the Open Meetings Law."

The solution posed in the question submitted by the member adequately addresses this concern.   By enabling observation and attendance via Zoom, the proceeding will be virtually accessible even though it has been physically convened.  The key is ensuring access at a time of modified operations.

And what do we do when Executive Order 202.72 expires?

We'll see in the New Year!

Thanks for a thoughtful question, I wish you a productive and safe meeting.



[1] https://www.governor.ny.gov/news/no-20279-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[2] If you'd like to follow the daisy-chain of executive orders on this, here goes: Executive Order 202.1 first suspended/modified the Open Meetings Law Requirements, and then Executive Orders 202.14, 202.28. 202.38, 202,48, 202.55, 202.60, 202.67, and now, 202.72, kept that suspension/modification going.

[3] There are several legal challenges under way, based on the ability of the Governor to continue the state of emergency and resulting Executive Orders.  I am not commenting on that.

[4] Found at https://www.dos.ny.gov/press/2020/Essential%20Meeting%20OML%20AO.pdf

Tags: Board of Trustees, COVID-19, Emergency Response, Executive Order, Open Meetings Law

Topic: Transcribing records under Open Meetings Law - 11/16/2020
Under the executive order, the modifications to Open Meetings Law meant we (I'm...
Posted: Monday, November 16, 2020 Permalink

MEMBER QUESTION

Under the executive order, the modifications to Open Meetings Law meant we (I'm asking for several libraries in our system) record our Board meetings.

How long does a library (public or association) or a cooperative public library system have to keep the recording of board or committee meetings ?  Looking at http://www.archives.nysed.gov/records/local-government-records-schedule-browse?combine=meeting+recording, it states:
 "Four months after the transcription or minutes have been created"

Transcribing could be challenging, particularly for smaller libraries, so we were relieved to read that once minutes were created, we might not have to transcribe (hopefully we are reading that correctly).

However - our question is about the placement of the word "or".  Is it:

Option 1: Once transcribed, keep for four months. Once minutes are created and accepted (which might be less than four months - in our case, it would be at the next board meeting), you can delete recording.
Option 2: Whether transcribed or minutes created, keep the recordings for four months. 

Under option 2, it seems like there is a higher standard for meetings.  Pre COVID, our board meetings would occur, open to the public but usually no public in attendance, and the only "evidence" of the meeting would be the minutes.  Now, we are required to keep the recording for at least four months - which isn't a huge hardship but curious about the rationale behind that.

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Before attempting to answer this one, my team and I looked to see if anyone else "out there" has tackled this question.

We scoured the usual places (NYS Empire Development's COVID site, Committee on Open Government, NY Archives, NYLA, etc.), but my staff and I didn't find anything right on point. That said, the COVID landscape changes fast, so please let us know if you find anything, and we'll post an update to this answer.

And with that shameless disclaim/plea on the record, here is my answer:

As I read it, the currently-governing Executive Order[1] requires an entity subject to the Open Meetings Law to keep the recordings until they have been transcribed—not just until the minutes have been created.

Here is my reasoning: Executive Order 202.1[2] changed the Open Meetings Law as follows:

...to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing 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. [emphasis added]

Although the normal application of the LGS-1 would allow for the recording to be erased upon creation of the minutes—just as the member points out—the Executive Order is an overlay that super-cedes (or at least, exceeds) normal record-keeping requirements.

I realize this means a library that can't afford to transcribe the recording any time soon will have to keep the audio around.  It's possible that the state, after considering the fiscal reality of the conditions the "later transcribed" condition imposes, may eventually tinker with the requirement, perhaps simply insisting the audio be retained for a certain time after the minutes are generated.[3]

I am leaning on the side of retention, and not taking the easy way out by swapping it out for creating minutes, because access to the process, in all its glory, is the default purpose of the law.  Further, Committee on Open Government Advisory Opinion has stated that while masks and social distancing remain requirements, entities subject to the Open Meetings Law must be making the proceedings contemporaneously available via audio or video[4].  So with all that, I have to err on the side of retention, access, and transparency.

Fortunately, digital sound file storage is not too costly these days.[5]

Thank you for a thoughtful question.



[2] Which as of this writing, is extended through December 3, 2020, by Executive Order #72, found on 11/17/20 at https://www.governor.ny.gov/news/no-20272-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[3] This sounds like a nice ask to go out from a library advocacy organization.   "Please, Mr. Governor, can you waive the estimated $[AMOUNT] in estimated transcription fees incurred the same year when many localities are taking COVID-induced hits to their budgets?"  I'd sign that letter in a heartbeat.

[5] Finding the budget to properly compensate qualified people to manage that storage is another question!

Tags: Board of Trustees, COVID-19, Emergency Response, Executive Order, Open Meetings Law, Retention, Streaming

Topic: Executive Order 202 and NY Open Meetings Law - 3/18/2020
Can you please explain the clause below found in Governor Cuomo's Executive Order dated 3/13/2...
Posted: Wednesday, March 18, 2020 Permalink

MEMBER QUESTION

Can you please explain the clause below found in Governor Cuomo's Executive Order dated 3/13/2020. It reads:

Suspension of law allowing the attendance of meetings telephonically or other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing 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.”

It is understood the Order allows a public body may hold and take action in meetings held remotely. The question comes to announcing the meeting and announcing the location of the remote conference call or similar device. Is notification required? And if so, to what extent? Location of participant?

A second question is regarding whether or not a location must be open to the public to attend OR if it is required the public also be able to access the meeting via telephone/telecommunication.

Executive order can be found here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202_1.pdf
 

WNYLRC ATTORNEY'S RESPONSE

I have a phrase I use in my office to remind my team (and me) to be diligent, but always play it cool: “Quick work is [not such very good[1]] work.”

To get ahead of the Covid-19 Pandemic, our government is acting QUICKLY.  The closings, the attention to a million health-related and logistical details—our leaders are having to handle an immense amount of work, in a very small amount of time.

When working quickly, one of the first things to go by the wayside is word-smithing. As can be seen from the member’s questions, that is what happened here.  The Order is helpful, but its phrasing probably could have been a bit more clear.[2]  UPDATE: Further, this March 13th Order may be confused for an earlier Order on March 7, which was the focus of a notice by the NY Committee on Open Government, that went out to many people, and has now been superseded by the Order referenced in the members question.[3]


So, unpacking the order (and explaining a few things it is clear the asking member already understands, but I am providing for helpful context), what does it mean for libraries?

Libraries are required by the New York Education Law (which creates them) to follow the Open Meetings Law (a/k/a “Article 7 of the Public Officers Law”).  This Order relaxes some of the laws requirements to suit our state’s pandemic response.

Typically, to comply with the Open Meetings Law, a library must: 1) provide notice of a meeting and announce the use of any teleconferencing in advance; 2) identify the location(s) for the meeting; and 3) state the public’s right to attend the meeting in person.   If the meeting will be live-streamed over the internet, the announcement must include the web address.  And finally, whenever possible, the library must post the notice of the meeting “conspicuously” on its website. [4]  (It has been firmly and repeatedly established that no voting can take place via teleconference, but videoconferencing is allowed).


The Open Meetings Law was passed because, as the New York Legislature puts it:

It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal[5] will prosper and enable the governmental process to operate for the benefit of those who created it.[6]

So what is different now?  We’re trying to maintain our democracy, but also keep it from getting sick.  With that goal in mind, lets parse the Order, and answer the member’s questions.

1. The Order says: “…without permitting in public in-person access to meetings…”

This means that for the duration of the Order, the public does not have to be able to physically attend your library’s board meetings.  Basically, it empowers your library to cut down the size of those physically assembling.  This is consistent with other recent Executive Orders regarding eliminating large gatherings.

 

2. The Order says: “…authorizing such meetings to be held remotely by conference call or similar service…”

This means that for the duration of the Order, contrary to the usual requirements, your board can meet view conference call (or “similar” service).

 

3.  The Order says: “…provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

This means[7] that in order to take advantage of the relaxed requirements I set out in “1” and “2” above, the public has to be able to see OR hear the meetings, BUT ONLY if your library arranges for them to be recorded and (later!) transcribed.

 

These are significant adjustments to the requirements of the law.  But with regard to notice, which is at the heart of the member’s question, the Order has waived none of law’s requirements. 

With that in mind, to the greatest extent possible, sending notice to the media as usual, and posting notice of the meeting in a physical, non-virtual place viewable to the public is still required. While disclosing the exact location of all meeting participants may not be possible (since they will be on the phone), the notice should strive to include as much information as possible that is most useful to the public, including the location of any physical participants.  And the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.

It might be also be helpful, when crafting your notice, to include acknowledgement that this meeting and notice will be a little bit different:

In keeping with Executive Order 202.1 (regarding emergency adjustments to the Open Meetings Law in response to the Covid-19 pandemic), the public is not permitted in-person access to this meeting, and the meeting shall be held remotely via [METHOD].  As required by the Governor’s Order, the public will have the ability to [VIEW OR LISTEN TO] such proceeding at [METHOD], and the meeting shall be recorded,  transcribed, and made available on the Library’s web site before [DATE].

Since current federal government guidance is that gatherings of more than ten people are not recommended at this time, it makes sense to not provide or allow access to a physical location in which to gather to listen to or view the meeting—at least for now.  But business must get done.

Good luck with your meetings; your board members have a lot to think about.



[1] I actually use shorter, monosyllabic word, but Ask the Lawyer is rated “G.”

[2] I am assuming that “legal aid in the Governor’s Office” is not a relaxing job right now (if it ever is).

[3] Thanks for the heads-up on the COOG’s 3/9/20 advisory memo, Grace Riario at Ramapo Catskills Library System (which, to emphasize, has been superseded by the 3/13/20 Executive Order).  With so much happening so fast, it is good to be able to add this layer of clarification.

[4] For a more thorough explanation, visit https://www.dos.ny.gov/coog/openmeetinglawfaq.html

[5] Not a typo, but a cool old word for the general welfare.

[6] Public Officers Law, Article 7, §100.

[7] For anyone who wants to get together (virtually!) and discuss the significance of potentially missing commas in this part, please send comments to adams@losapllc.com.

 

Tags: COVID-19, Emergency Response, Executive Order, Open Meetings Law

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.