Governor Lamont has issued Executive Order 7B that allows agency meetings to be conducted by video conference or conference call, without public attendance. A second Order that will modify notice procedures, timeframes, filing requirements, and action deadlines for land use agencies is expected to be issued in the next day or two, and we will explain it in a separate alert. These two orders will work in tandem. This email summarizes Executive Order 7B and offers the best advice we can provide at this point. Please note that this Order is a substantial change to a well-established system, so of course logistical questions and legal issues abound; we will follow up this summary as we see this Order and its land use companion unfold during the coming days and weeks.
First and foremost, we should all recognize that, despite the implementation issues that will likely arise (as explained below), these orders constitute a laudable group effort, drafted under great time pressure, to allow public agencies to handle their duties and conduct business, but without large gatherings that could result in community spread of the virus.
It is critical to keep in mind that every town is different, and just because a public agency or a town/city (after this we will say "town") announces that its "town hall is closed," or a meeting or hearing is "cancelled" or "postponed," does not mean that government work is not proceeding or that services (such as permit application reviews or inspections) are unavailable, because it appears that many town staff, like the rest of us, are working remotely. In general, public agencies have not been relieved of their duties or deadlines, and their members and staffs have been finding alternative ways to work.
As with so many other aspects of this public health emergency, communication, cooperation, and civility are the keys to getting things done.
Reflecting back on lessons learned after September 11, 2001, those who may try to turn emergency orders and procedures to their advantage, or to prejudice someone else's rights, risk not only violating the law, but incurring public wrath.
Keep in mind that, in general, public emergency orders try to balance the critical need of government to keep functioning with your rights as citizens, which have three parts: (1) your constitutional rights to petition the government and to assemble with others to request action; (2) "due process" -- your right to notice of what government plans to do, and an opportunity to prepare and to be heard; and (3) "fundamental fairness," which means your right to be treated equally during the government decision making processes.
Executive Order 7B - Public Meeting Requirements
This Order permits public meetings to be held by conference call, videoconference or other technology, so long as (1) the public can view or listen to each meeting in real time by video, phone, or equivalent technology; (2) each meeting is recorded or transcribed, and the recording or transcript is posted on the agency's website within seven days of the meeting, and made available within a reasonable time in the agency's office; (3) the required notice/agenda for each meeting is posted on the agency's website and includes information about how the meeting will be conducted and how the public can access and participate in the meeting; (4) any materials relevant to agenda items, such as exhibits (maps, plans, photos, testimony) are submitted to the agency at least 24 hours prior to the meeting and posted to the agency's website for public inspection prior to, during, and after the meeting; and (5) all speakers taking part clearly state their name and title each time before they speak.
Analysis of Order 7B
- This Order "suspends" the Freedom of Information Act requirement that public agencies conduct meetings in person and allow in-person public access to their proceedings;
- This Order per se does not alter any timeframes or deadlines for action;
- This Order is in effect indefinitely;
- The Order does not change the rules for executive sessions, only public meetings;
- Each town's or public agency's website becomes the focal point for everything, and this will put considerable pressure on the town or agency staff to direct the flow of electronically filed notices and materials (for an example of how one city, Hartford, has set up an electronic meeting under this Order, see bit.ly/2U1Fbrn);
- This alternative procedure for public agency meetings is far from ideal, and will raise logistical and legal issues: while technology for "e-government" meetings has been around for years, the procedures authorized by this Order have intentionally not been authorized by the Freedom of Information Act, precisely because so much of our administrative agency system depends on people showing up in person and making their presentations;
- This Order plainly puts at risk those who don't have computer access, or computer skills to log into, participate in, or submit materials for, electronic meetings; so if this Order will result in appeals to court challenging the validity of meetings and hearings, this will be the most likely basis;
- If you plan to participate in an electronic meeting, email the agency staff about your intent to do so, describe how and when you plan to participate, and make sure your own technology is working; and
- If you believe that your rights are being or have been violated by an electronic meeting, send an email immediately to the town or agency staff, stating your concern or describing your inability to participate, or the prejudice to your rights.
We are ready and able to help you participate in any meeting or hearing that will be governed by this Executive Order, and to assist in identifying, asserting, and protecting your rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.