Many Municipal Zoom Meetings To Resume Next Week. Remote Meeting Provisions Extended To April 2022

All town public bodies, excluding Town Council and their committees and boards, will resume meeting via Zoom beginning next Monday and continuing through at least Labor Day. The resumption was enabled by Governor Baker’s signing into law on Wednesday (6/16) an order extending certain emergency pandemic provisions, including those covering remote meetings, until April 2022 (see provision of the law later in this article).  The Amherst Town Council meeting scheduled for  Monday (6/21) will be held in a previously announced hybrid form, with most members meeting in person in the Town Room of Town Hall but with access available to the public and some members of the Council via Zoom. Councilors Alisa Brewer (at large) and Darcy DuMont (District 5) have announced that they will continue to participate remotely for the time being.  According to Brewer, the Council is likely to resolve their preferred summer meeting format at its meeting on June 28. At this writing no information was available on plans for the Community Resources Committee, Finance Committee, Government, Organization and Legislation Committee, Town Services and Outreach Committee, all Committees of the Town Council. Plans for the meeting format of the Planning Board,  Zoning Board of Appeals and School Committee are also not known at this time.

The expiration of the emergency pandemic remote meetings provisions on Tuesday (6/15) led to the cancellation of scheduled meetings of the Historic Commission, the Energy and Climate Action Committee, and the Transportation Advisory Committee last week because of the lack of in-person quorums.  Indy Correspondent Hilda Greenbaum reports that the same fate would have befallen the Local Historic District Commission, which met on Monday, June 14, if they had been required to meet in person. At that meeting, Commissioner Karin Winter participated from Germany.

The return to remote meetings was welcomed by town officials and members of the public with nearly all noting that the advent of online meetings  has increased and enhanced public civic participation.

Brewer, who has long been an advocate for forms of remote participation, was pleased to see the adoption of the bill and had previously given testimony during the legislative process.  “We cannot move backwards when we move to in-person meetings,” she said. “We have so much more transparency and engagement during Zoom meetings. It is not reasonable to stop recording meetings other than those few contracted with Amherst Media. We need to continue to ensure that when members of our community wish to speak on camera instead of in email or individual phone calls that they can do so without having to arrange childcare or elder care, drive to Town Hall, find parking, wait in a meeting room, etc. We will see how well a hybrid model works on Monday.” Read her testimony here.  

Town Manager Paul Bockelman welcomed the restoration of remote meeting provisions. “We will stay in this virtual meeting format through the summer and revisit how we conduct meetings in September,” he said and added, “We heard few complaints about not meeting in person, which we couldn’t do during the pandemic.” 

Bockelman said that hybrid meetings, where some people are in-person and some are remote, may present some technological challenges but that his staff will be working to ensure equity in participation.

He stated, “As we review the options going forward under the new legislation, we will consider a number of factors based on what we have learned from the all Zoom format. In Zoom, there is greater access to the public, all meetings can be recorded, there is no “transaction time” to get from one meeting to another, and many people find it easier to participate or observe from their home without the need for childcare, etc. However, there are other considerations such as the lack of access if you don’t have the technology or a strong Internet connection, the loss of the personal aspects of being together and the interactions that can occur with other committee members and the members of the public in an in-person setting which may lead to better decisions. “

Councilor Steve Schreiber (District 4) said “I support some percentage of our Town Council meetings (and committee meetings) remaining fully remote. Anecdotally, the fully-remote meetings seemed to increase public participation by removing various barriers for residents with family and work obligations, disabilities, and transportation issues. The worst part of the fully remote meetings is that members of the public could not see each other, the Council could not see the public, and the meetings favored people with good technology skills. That’s why I hope some meetings—but not 100%–can be fully remote.”

DuMont requested that a vaccination requirement be implemented for in-person meetings but there was no indication that her request would be taken up by the Council. 

Jennifer Taub, Chair of the Local Historic District Commission said “Certainly the option to attend remotely fosters participatory democracy, making it possible for residents with younger children and the elderly to Zoom or phone in.”

Maura Keene and Hilda Greenbaum, both correspondents for the Indy, noted that at the first in-person meeting of the Planning Board on June 16, participants, who were all wearing masks, were difficult to understand and that the proceedings were difficult to follow.

Mass Municipal Association Supports Return To Remote Meetings
Prior to the passage of the new law, the Massachusetts Municipal Association (MMA)  urged its adoption. In a letter to the legislature it said,  “Many localities have closed public buildings, repurposed meeting rooms to provide safer distancing for staff, or have longer-term ventilation concerns that have yet to be addressed. Further, with many residents yet to be vaccinated and immune-compromised officials and members of the public unable to achieve full protection from the coronavirus it is imperative that we continue the remote meeting option for local government.”  MMA supported permanent provisions for allowing remote meetings.

The New Law
Governor Baker signed into law An Act Extending Certain COVID-19 Measures Adopted During the State of Emergency on June 16.   This Act includes an extension, until April 1, 2022, of the remote meeting provisions of his March 12, 2020, Executive Order Suspending Certain Provisions of the Open Meeting Law. Thd new law has two major parts. 

First, it allows public bodies to continue providing live “adequate, alternative means” of public access to the deliberations of the public body, instead of holding in-person meetings in a public building. “Adequate, alternative means” may include, without limitation, providing public access through telephone, internet, or satellite-enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time.

Second, the new law authorizes all members of a public body to continue participating in meetings remotely; the Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting location remains suspended.

The new law provides that a municipal public body that, for reasons of economic hardship and despite best efforts, is unable to provide alternative means of public access that will enable the public to follow the proceedings in real time, may instead post a full and complete transcript, recording, or other comprehensive record on its website as soon as practicable after the meeting. In light of the various free and low-cost technologies that could be used to provide the public with real time access, the Division of Open Government strongly recommends that a municipal public body consult with its office before determining that it is unable to provide the public with real-time access to a meeting. 

All other provisions of the Open Meeting Law and regulations, such as the requirements regarding posting notices of meetings and creating and maintaining accurate meeting minutes, remain in effect. Public bodies are reminded that notices of all meetings must be posted at least 48 hours in advance, not including weekends and holidays, and the meeting notice must clearly specify how the public may access the meeting, whether in-person, remote or both. Some technical issues are addressed below.

May Public Body Members Meet In Person, While Requiring The General Public To Follow The Proceedings Remotely?
Yes. Section (1) of the executive order allowing public access through adequate, alternative means is independent from Section (2), which allows members of the public body to participate remotely. The public body may conduct its proceedings under the relief provided in section (1) or (2) or both. 

If A Public Body Will Provide Access To Its Meeting Through “Adequate, Alternative Means,” What Information Must Be Included On The Meeting Notice?
Public bodies must continue to post notice of every meeting at least 48 hours in advance of the meeting, not including weekends or state holidays, using the official notice posting method (physical notice or website), even if the clerk’s office is closed.  The notice must include the “location” of the meeting.  If access to the meeting will be provided through “adequate, alternative means,” the meeting notice must include clear instructions for accessing the meeting remotely. A public body may require members of the public to call to obtain access information for the meeting, rather than including such information on the public meeting notice, to minimize Zoom-bombing and similar disruptions.  In such situations, the meeting notice must include clear contact information, and members of the public must be able to obtain the meeting access information up to and throughout the duration of the meeting (members of the public cannot be required to register in advance).

What Other Requirements Apply To Remote Meetings?
The Open Meeting Law regulations governing remote participation, 940 CMR 29.10, remain in effect, except where the Governor’s executive order specifically suspends certain requirements.  In particular, when any—or all—public body members participate in a meeting remotely, the following requirements apply: 

1. At the start of the meeting, the chair must announce the name of the member or members who are participating remotely; such information must also be recorded in the meeting minutes.
2. All votes must be taken by roll call.
3. Members of the public body must be clearly audible to each other and to members of the public at all times.
4. When holding an executive session remotely, the public body must still take all required procedural steps for entering into executive session in open session. At the beginning of the executive session, each public body member participating remotely must state that no other person is present or able to hear the discussion at the remote location, unless the public body has approved the presence of that individual.

Should the public body encounter technical problems while meeting remotely, the person chairing the meeting may decide how to address the technical difficulties, but is encouraged wherever possible to suspend discussion while reasonable efforts are made to correct any problem that interferes with a remote participant’s ability to hear or be heard clearly. If technical difficulties result in a remote participant being disconnected from the meeting, that fact and the time at which the disconnection occurred must be noted in the meeting minutes.

What About Public Comment, Public Participation, And Public Hearings?
The Open Meeting Law does not require that public bodies allow public comment or public participation during meetings — to the contrary, the Open Meeting Law specifies that nobody shall address the public body without permission of the chair. However, the Attorney General encourages public bodies to allow public comment and/or public participation when feasible.    Because the Open Meeting Law does not require that public bodies allow for public comment or public participation during meetings at all, the manner that public bodies may choose to accept comments or questions is outside the scope of the Open Meeting Law.  Public hearings, on the other hand, are governed by separate laws that impose additional requirements, and may require opportunity for public comment or testimony.  Those requirements are outside the scope of the Open Meeting Law and therefore do not fall within the Division of Open Government’s jurisdiction.  Public bodies and members of the public should consult with legal counsel for guidance on the requirements for public hearings.