RAQs: Recently Asked Questions

Topic: Trustee Addresses for Open Meetings - 10/27/2021
As you know, Governor Kathy Hochul signed legislation (S.50001/A.40001) extending virtua...
Posted: Wednesday, October 27, 2021 Permalink

MEMBER QUESTION

As you know, Governor Kathy Hochul signed legislation (S.50001/A.40001) extending virtual access to public meetings under New York State's Open Meetings Law, which allows New Yorkers to virtually participate in local government meetings during the COVID-19 pandemic.

My assumption is that library trustees will continue to be required to provide their home address or the location from where they are remotely attending the virtual meeting. Has that law requirement changed with this extension?

WNYLRC ATTORNEY'S RESPONSE

Short answer

There is no requirement to disclose the location of a remote participant under the past Executive Orders or the current modification.

 

Long answer

I am grateful for this question since it gives me a chance to revisit an earlier answer ("Ask the Lawyer" #120) and clarify something.

The answer in "120" was based on the Executive Order(s) that temporarily modified the Open Meetings Law, allowing proceedings to be entirely virtual in the interests of safety...IF the proceedings could be seen/heard by the public, AND IF they were later transcribed.

This new law--which expires on January 15, 2022--uses legislation to achieve the same (temporary) modification.

So, if it is duplicative, what do I need to clarify?

As the member's question alludes to, before these modifications, any board member who wanted to participate remotely in an OML-governed meeting (which is any library board or committee meeting) had to disclose the address they were calling in from--because, essentially, that location was considered a "satellite" location of the meeting, where members of the public could attend. 

This long-standing approach led to some interesting scenarios over the years.  If the remote link was in an airport, the meeting was being conducted, partially, in an airport.  Or if the remote link was in a person's living room, the meeting was being conducted, partially, in the living room.  And by law and guidance, any person who wanted to physically attend the meeting at the satellite location had the right to do so...which is why the satellite location had to be included in the meeting notice.

But the modifications we are discussing changed that.

While the current guidance and commentary from the New York Committee on Open Government (the "COOG") does not say anything expressly about home addresses,[1] as I read it, neither the Executive Order nor the current legislative modification good through January 2022, require remote participants to disclose the location they are calling/zooming in from.  Further, it certainly doesn't transform the location they are calling from into a "satellite" meeting location....which means, if I choose to attend from my living room, a member of the public can't, by law, demand entry.

So, if the current guidance is silent, why do I believe remote participants' addresses don't need to be provided under the modified law?  While we can debate the competing virtues of physical v. virtual participation,[2] what is clear to me is that the purpose of the modifications--public safety--would be undone if every remote participant became a satellite location and was required to host the public.  And if the public can't demand entry to a remote location, there is no basis to disclose its address.

In my original reply, I didn't drill this point in hard enough[3].  That is why the "short answer" above states my position plainly, and why I am grateful for this chance to clarify.

Thanks for a helpful question.  May all your meetings be safe and fruitful, no matter where they occur.

 



[1] I am putting a screenshot of this guidance below the reply, and the live link, as of October 14, 2021, is here: https://opengovernment.ny.gov/system/files/documents/2021/09/chapter-417-of-laws-of-2021_0.pdf.

[2] Which I hope the COOG does at its next meeting, on October 19th, which I will be attending as an audience member...virtually.

[3] What I said was "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."  That last clause should be "...including the location of the physical meeting, if there is one."  This type of slip is why the profession of "editor" is still a vital job, even though the fields of publishing and journalism are changing so rapidly.

Screenshot of guidance referred to in footnote 1 which has a link to the document in question.

 

Tags: Board of Trustees, FOIA/FOIL, Open Meetings Law, Compliance

Topic: Availability of Open Meeting Documents - 10/27/2021
The Governor signed S1150A/A1228A into law [on] October 19, 2021. Now Chapter 481, this change req...
Posted: Wednesday, October 27, 2021 Permalink

MEMBER QUESTION

The Governor signed S1150A/A1228A into law [on] October 19, 2021. Now Chapter 481, this change requires that open meeting documents be available upon request or posted to the public body's website at least 24 hours prior to the open meeting at which the documents will be discussed.  Can you comment?

AND

Several libraries have questions regarding the new Open Meetings Law S1150A/A1228A

The law requires that open meeting documents be available upon request or posted to the public body’s website at least 24 hours prior to the open meeting at which the documents will be discussed. https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A01228&term=2021&Summary=Y&Memo=Y&Text=Y

Do libraries that furnish the documents upon request also have to post the documents on their websites?

Does a library have to post the documents on their website 24 hours in advance, if no one requests them?

What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc. What about a new personnel manual that is enormous, or, a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?

How long does a library have to leave the documents up on their website after the meeting takes place?

Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?

 

WNYLRC ATTORNEY'S RESPONSE

Because there are a lot of layers here, let's start with some bedrock fundamentals.

Bedrock #1: All NY-chartered libraries, including association libraries, must abide by the Open Meetings Law (the "OML"), a New York State law which requires certain meetings be accessible in real time to the general public.[1]

Bedrock #2: While all chartered libraries must follow the OML, only public libraries, as quasi-governmental agencies, are subject to its cousin, the Freedom of Information Law ("FOIL").[2]

Bedrock #3: As the members write, the OML has been changed to require the posting of materials to be reviewed at least 24 hours in advance of a meeting.  For libraries, this means that even if the library is not an "agency" subject to FOIL, the documents to be reviewed at the meeting--unless disclosure is barred for an express reason, such as attorney-client privilege[3]--must be posted.

Okay, with three sturdy bedrocks to build on, let's lay the foundation for the answers.

As stated before, the OML was recently changed to require advance posting of materials to be reviewed at a meeting.[4]

According to the Assembly memo that accompanied the bill, here is the basis for the change:

[S]ection 103 of the Open Meetings Law [currently only] requires agencies to make

any documents to be discussed at an upcoming open meeting available to

the public, "to the extent practicable." This vague phrase has created

loopholes and a way for agencies to bypass this requirement. In an anal-

ysis of 41 local governments conducted by the New York Coalition for

Open Government, 15 percent do not post meeting documents.

 

COVID-19 has made it apparent that there is technology readily available

for agencies to use in an effort to be more transparent.  Meetings are

only taking place virtually and individuals are at an immense disadvan-

tage because there is no in-person opportunity to request a hard copy of

any documents at the meeting. Therefore, it is even more important that

agencies utilize the technology available to post documents online where

the public can effectively access them.

The exact wording adopted to address these concerns, found in Section 103 of the New York Public Officers Law, goes into effect November 18th, and reads:

Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable at least twenty-four hours prior to the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefor in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable at least twenty-four hours prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.

And with that "the Assembly hath spoken," and we can answer the questions.

Question 1: Do libraries that furnish the documents upon request also have to post the documents on their websites?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable." 

I take this to read "If your library website has an event calendar you maintain, you need to get your meeting documents up on it at least 24 hours before the meeting."

Question 2: Does a library have to post the documents on their website 24 hours in advance, if no one requests them?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable" even if no one has requested them.

What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc.

Small note: Even before this change, the minutes should already be available, since Section 106 of the OML expressly requires availability within two weeks of the meeting.

Answer for public libraries: Every document that will be reviewed at the meeting.

Answer for association libraries: If you don't want to be a test case regarding the interaction of FOIL and the OML, post every document that will be reviewed at the meeting.   If you do want to be a test case, cite the slightly imperfect writing that describes what is to be disclosed ("Agency records available to the public pursuant to article six of this chapter"), and say that since your library is not an “agency” per Article 6 of the Open Meetings Law, and thus not subject to FOIL (see Bedrock #2), you don't need to provide a darn thing.

I am kidding.  Don't do that.  I am writing the Committee on Open Government to request guidance on this issue, and I am fairly confident they will confirm that the intent is that the entire board packet is required to be posted, even when the subject organization is not subject to FOIL; I will post a follow-up when I get some input.

Question 3: What about a new personnel manual that is enormous, or a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?

Large documents should be posted; per the new section of the law, if requested in hard copy, the library can charge a "reasonable fee."

Regarding "new business," if the new business raised is only verbal, there is no problem.  If, however, the "new business" is a letter, article, or proposed policy, the board action should be confined to establishing the next steps to be taken once proper posting can be effected.  And if the "new business" must be handled on an emergency or expedited basis, that can be done via a meeting of the Executive Committee,[5] with any action ratified in a later meeting, with the written content shared in advance as required.

How long does a library have to leave the documents up on their website after the meeting takes place?

I am sure there will be more guidance on this in the future, but for now, I read the law as requiring the posting to be "to the extent practicable," meaning for as long as the content can be posted without causing undue expense or burden on the system.

Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?

Unlike the current change to the OML regarding remote attendance (which is currently in effect, and sunsets in January of 2022), this modification of the OML Section 103 goes into effect on November 18th and stays with us until it is struck down by a court (not likely) or changed by the Assembly (not likely, except for slight refinements).

Where we'll see some follow-up and guidance about this new law is from the Committee on Open Government.  The COOG, as they call it, posts notice of its meetings here: https://opengovernment.ny.gov/committee-news.  I'll be sending a question about the scope of document disclosure by association libraries, and if you tune into the next meeting (when it is scheduled), you will likely see me in the WebEx as a mute observer. 

Thanks for a thoughtful and timely array of questions.  Stay tuned.

 

 



[1] This is required by Section 260-a of the New York Education Law, which is the law that allows the creation of such libraries.  So public access is baked into a chartered library's DNA.

[2] See the Committee on Open Government advisory opinion at https://docsopengovernment.dos.ny.gov/coog/ftext/f16795.htm, which states: "For purposes of applying the Freedom of Information Law, I do not believe that an association library, a private non-governmental entity, would be subject to that statute; contrarily, a public library, which is established by government and "belongs to the public" [Education Law, §253(2)] would be subject to the Freedom of Information Law." That said, all documentation an association library generates and submits to a governmental agency is subject to a FOIL request to that agency.

[3] My personal favorite disclosure exemption, of course.

[4] This was not the only change; there were also temporary changes regarding remote attendance.  See ATL “Open Meetings Law and end of NYS' Emergency Status - 06/30/2021” for more on that, (we'll also tackle it in one of the questions here).

[5] NOTE: Per the Section 260-a of the Education Law, in cities with a million or more people, even the committee meetings must be open.

Tags: Board of Trustees, Compliance, FOIA/FOIL, Open Meetings Law

Topic: Open Meetings Law and Social Distancing Requirements - 07/06/2021
Now that Open Meetings Law modifications have been lifted, are we still required to maintain physi...
Posted: Tuesday, July 6, 2021 Permalink

MEMBER QUESTION

Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings? We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing? If some of them are not vaccinated, do we required all the trustees to wear masks? Do we provide physical distancing for the ones who are not fully vaccinated? I would like to host a staff luncheon ( I understand that is now allowable) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?

WNYLRC ATTORNEY'S RESPONSE

This question comes at a very challenging time.[1]

The question is difficult because right now, the World Health Organization is looking at the "Delta Variant" of COVID-19 and telling the world to consider continuing to use masks and social distancing while inside.[2]

New York, of course, after a 6-day scramble, started following the Center for Disease Control's May 13 "surprise" guidelines stating that vaccinated people no longer need to wear masks or social distance indoors.[3]  And as of July 1, 2021, the state announced that almost all COVID-related restrictions were lifted.[4]

Where does this leave us?

Throughout the Pandemic, when asked about how to interpret and follow law, regulations, and Executive Orders governing the state's COVID response, my watchword has been: "Safety first."

After that, I have listed what is required at that point in time, and then referred libraries and cultural institutions to resources about how they can develop a Safety Plan[5] crafted to suit their unique identity (by "unique identity" I mean things like a large library with outdated HVAC and windows that don't open, has different considerations than a small library with assurance of constant fresh air).

With so much uncertainly at this time, my tired playbook is getting tested.  But I'll use it to try and answer each of the member's questions:

Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings?

If your (now optional, but if the board keeps it in place, enforceable) Safety Plan still requires physical distancing, then yes.

We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing?

If your Safety Plan has opted to continue using the NYS May 19th guidance, and the meeting is not exceeding the occupancy threshold, no, you do not.  HOWEVER, there is nothing to stop the board from deciding that, in the interest of safety and enabling each trustee to take whatever steps they need to feel safe, they are going to allow some trustees to attend from a remote location.[6]

If some of them are not vaccinated, do we required all the trustees to wear masks?

The WHO would (currently[7]) say: yes.

The CDC and the State of NY would (currently[8]) say: no.

For what it's worth, I tend to follow the most cautious reputable source at any given time (so would say: there is ample ground for your Safety Plan to require this, while there is also ample ground for your board to revise the Safety Plan to require only the bare minimum of advised precautions).

Do we provide physical distancing for the ones who are not fully vaccinated?

If that is at all possible, I strongly support that idea.  Being able to show an institution took the time to consider the best way to keep its community safe is good from any angle: mission, legal compliance, and employee/community relations.

I would like to host a staff luncheon (I understand that is now allowable[9]) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?

It pains me to say it, but sometimes, the law is not the best guide as to what to do!  Legally, if your library is still using the May 19th NYS Guidance, your Safety Plan can allow for this to happen, if you follow the required prescriptions.

However, it makes sense to me to "read the room" and see if such a luncheon would be a team-building exercise, or (because some employees might not feel at ease eating in close proximity to others) risk bad feelings and alienation.  If everyone cannot attend with the same level of comfort, it might be better to come up with an alternate bonding exercise.[10]

Conclusion

I truly wish I could offer more definite guidance.  The truth is, libraries--even with the return to the strict requirements of the Open Meetings Law--have many options for how to proceed.  So as tired as it may sound, put "safety first," and all things will follow from there.

Coda

Since the Powers That Be out there move quickly, here are some snapshots of the current guidance I am referencing in this answer.

Snapshot of the current WHO Guidance:

Screenshot of current WHO Guidance as of July 6 2021.

Snapshot of NY's July 1 announcement:

Screenshot of NY.gov announcement from July 1, 2021.

 

Snapshot of New York's May 19th Guidance (now largely optional):

Screenshot of NY's guidance from May 19, 2021, which is now optional

 

Snapshot of current (June 10) OSHA guidance:

Screenshot of OSHA guidance from June 10, 2021.

 



[1] Has any date since March of 2020 not been in a "challenging time?"  I have a dim recollection of July of 2020 being semi-okay.

[5] Whether they were required to have one, or opted to have one.

[7] As of July 2, 2021, at 11:30 AM.  Go ahead, WHO, hit me with a change-up, I can take it.

[8] As of July 2, 2021, at 11:30 AM.  Go ahead, CDC and NY Department of Health, hit me with a change-up, I can take it just as well as I could at 11:30!

[9] This answer is complicated enough, I am not going to tackle the fiscal considerations of hosting events for staff!  See 1990 Comptroller Opinion #144 (May 15, 1990)

[10] This part might be a better question for the "Ask the HR Expert" service, since my idea of bonding is listening to Supreme Court Oral argument while providing color commentary (this is why my paralegal plans our events).

Tags: Board of Trustees, COVID-19, COVID-19 Vaccine, Emergency Response, Open Meetings Law, Safety Plan

Topic: Open Meetings Law and end of NYS' Emergency Status - 06/30/2021
First question: With the expiration of the Executive Orders on June 24th, 2021, including the Orde...
Posted: Wednesday, June 30, 2021 Permalink

MEMBER QUESTION

First question: With the expiration of the Executive Orders on June 24th, 2021, including the Order modifying the requirements of the Open Meetings Law, are libraries back to the "old way" of conducting trustee meetings?

Follow-up question: If the answer to the first question is "yes," does this mean that trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?

WNYLRC ATTORNEY'S RESPONSE

First question: Yes...with the expiration of the Executive Orders on June 24th, including the Order modifying the Open Meetings law,[1] things are "back to normal."

Or, as the Committee on Open Government, the authority on the State's Open Meetings Law (OML), put it:

Screenshot from NYS' Open Meetings' website that says authority for remote meetings ends June 24, 2021.

 

So, does this mean "trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?"

Various case law and commentary about the OML has confirmed that when a public body needs to meet via teleconference, the public must be able to attend from any remote location "calling in" to the meeting, and that location should be part of the meeting notice.[2]

Or, as the COOG put it in Advisory Opinion 5535 in 2018:

"So long as the public is permitted to attend at any location at which a member participates and can observe the members wherever they may be, I believe that the members may participate and be counted for purposes of attaining a quorum and for voting, and that a meeting may validly be held." [emphasis added]

For large public bodies such as the Regents, the New York Power Authority, and other entities that must hold publicly accessible meetings, and whose board members may reside in far-flung areas of the state, the use of publicly accessible call-in sites comes with an IT team and a budget.

For a public library, whose members generally reside within that library's area of service, this "back to normal" pretty much means that you're back to meetings in person.

Of course, under the Not-for-Profit Corporation law (which, along with the Education Law, governs the conduct of library meetings), a library board of trustees is allowed to conduct meetings telephonically.[3]  When coupled with the requirements of the OML, however, that latitude is severely reigned in--since whatever space is used for the remote call-in must be accessible to the public, and included in the notice.

For this reason, unless a library trustee is very comfortable inviting the public into their home, I advise against using the "dial in from home" option.[4]

NOTE:  This answer does not consider if a trustee needs to attend remotely due to it being an accommodation under the ADA.  That is a separate and critical question; for now, I'll simply say that adherence to the OML should not rule out consideration of ADA issues.

The transparency created by Education Law 260-a's requirement that public libraries abide by the Open Meetings Law is laudable--but is also based on older notions of technology.  Now that the State of New York has lived under different rules for over a year, we might see some changes in legislation.

But for now, we're "back to normal."

I hope this is helpful.

 



[1] Allowing them to be held via teleconference so long as the meeting is accessible to the public, recorded, and transcribed.  For more comments on this, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/120 and https://www.wnylrc.org/ask-the-lawyer/raqs/185.

[3] See NFPCL Section 708(c) "Unless otherwise restricted by the certificate of incorporation or the by-laws, any one or more members of the board or of any committee thereof who is not physically present at a meeting of the board or a committee may participate by means of a conference telephone or similar communications equipment or by electronic video screen communication. Participation by such means shall constitute presence in person at a meeting as long as all persons participating in the meeting can hear each other at the same time and each director can participate in all matters before the board, including, without limitation, the ability to propose, object to, and vote upon a specific action to be taken by the board or committee."

[4] I recently saw a very good presentation on parliamentary procedure for library boards.  The presenter commented that disclosure of home addresses should not be made, due to safety concerns.  I absolutely agree with that caution, but must emphasize that if a trustee calls in from a remote location, with the emergency modification of the law over, the OML requires that all "locations" of the meeting (including a remote call-in site) must be disclosed.

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

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, Record Retention, Streaming

Topic: [2020 Pandemic Date Specific] 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.