[UPDATE: Section 4.31 of Session Law 2020-3 enacted new G.S. 166A-19.24, which imposes a variety of procedural requirements on remote meetings held by public bodies during a state of emergency declared by the Governor or General Assembly. As defined by G.S. 166A-19.24, a “remote meeting” is one at which at least one board member participates by electronic means. In other words, the statute doesn’t apply to a meeting where all board members are physically present, even if the board doesn’t allow the public to attend in person. For a discussion of the new law’s requirements, please see the blog post here. This post still provides useful guidance for meetings where the board members attend in person but members of the public aren’t allowed inside the meeting room.]

Electronic meetings have quickly become a fact of life for many local governments in North Carolina as officials have acted to limit the spread of the Coronavirus. This post summarizes some of the advice that my colleagues and I have been giving on best practices for electronic meetings.

In this post, I assume that it’s lawful for local government boards to meet and conduct at least some business electronically rather than in person. As my colleague Frayda Bluestein has pointed out here and here, the quorum statutes for city councils and boards of county commissioners (BOCCs) don’t provide clear authority for remote participation by members of those bodies, but they don’t expressly forbid such participation either. As explained here, the wording of the city council voting statute also might raise questions about remote participation by council members. Nonetheless, for purposes of this post, I’m going to take it for granted that councils and BOCCs may meet and act electronically.

“Electronic Meeting” Variations

Over the past several weeks I’ve seen the phrase “electronic meeting” used to cover a range of situations, including the following:

• Board members meet solely by electronic means. The board makes a room available where members of the public can go to listen to (or watch and listen to) the meeting.
• Board members meet solely by electronic means. The board streams the meeting live online or provides a phone number that people can call to listen to the meeting.
• Some or all board members meet in person, but the board (1) limits the number of other attendees in response to social distancing guidelines or restrictions on mass gatherings or (2) completely bans the public from attending the meeting in-person. The board livestreams the meeting or gives out a number people can call to listen to the meeting.

The recommendations in this post apply to all three of the above situations.

Meeting Notice

The open meetings law remains in effect during the COVID-19 state of emergency. Consequently, the law’s public notice requirements continue to apply to all official meetings of local government boards.

There’s a bit of confusion over the notice requirements for electronic meetings. Some people think of an electronic meeting as something other than a regular, special, emergency, or recessed meeting. That’s incorrect. When it comes to notice requirements, an electronic meeting is simply a regular, special, emergency, or recessed meeting conducted by electronic means. The decision to meet electronically doesn’t relieve a board of its notice obligations. Indeed, if board members meet solely by electronic means, they trigger the additional notice requirement set out in G.S. 143-318.13(a) and described below.

Recommendations

• Provide the public notice required under normal circumstances for a regular, special, emergency, or recessed meeting, as applicable.

• If board members plan to meet solely by electronic means, comply with G.S. 143-318.13(a) by indicating on the notice the location and means whereby the public may listen to the meeting.
• If the board has restricted or banned in-person attendance, include instructions on the notice on how the public can listen to or watch and listen to the meeting.

Quorum

A quorum is necessary for a local government board to conduct business at any meeting, including an electronic one. The default rule is that a quorum consists of a simple majority (more than half) of a deliberative body’s members. Statutes dictate the quorum calculation methods for city councils and BOCCs, as discussed in more detail here.

Recommendations

• At the outset of the meeting, verify the identities of all members participating remotely.
  • Ask all remote members to state their names for the record.
  • If a member participates by audio only, but the other members are confident that they recognize the member’s voice, it’s probably reasonable to rely on voice recognition alone. Of course, verification is easier and more reliable if remote members use platforms that allow other members to see and hear them.
• Follow a clear rule for determining how the quorum will be affected when members lose or deliberately terminate their connections.
  • When a connection is lost, the presiding officer may want to call a brief recess while an attempt is made to reconnect with the remote member.
  • In most cases, the default rule is that members who lose or terminate their connections no longer count as present for quorum purposes.
  • Under the quorum statutes for city councils and BOCCs, a member who leaves a meeting without being excused by majority vote of the remaining members still counts as present for quorum purposes. If the city council or BOCC treats members who participate remotely as present for quorum purposes, it makes sense to treat the loss of a member’s connection as equivalent to a member’s physical departure from the meeting room. If the council or BOCC unexpectedly loses its connection with a member, and efforts to restore the connection prove unsuccessful, the remaining members should probably vote to excuse the member unless they have reason to believe that the member deliberately terminated the connection.

Motions & Voting

The minutes of local government board meetings must record motions made and the outcomes of the votes on those motions. When board members participate by electronic means, it can be harder than usual for members and the public to tell what motions were made, who made them, and how each member voted on them. Too much confusion could lead people to question whether a motion really passed (or failed, as the case may be).

City councils and BOCCs have another reason to ensure that the minutes correctly document the votes, or failures to vote, of their members. State law requires council members and county commissioners to vote except when they are excused from voting for legally valid reasons. G.S. 153A-44; 160A-75. Generally, under G.S. 160A-75, the unexcused failure to vote by a council member who’s “physically present,” or who has left the meeting without being excused, must be recorded as an affirmative vote. As I discussed in a previous blog post, G.S. 160A-75’s use of the phrase “physically present” likely means that the statute’s default “yes” rule doesn’t apply to members who attend meetings electronically. Councils that want the default “yes” rule to apply to those members need to adopt local rules to that effect. The same is true for the many BOCCs and local appointed boards that have adopted their own default “yes” rules modeled on G.S. 160A-75.

Recommendations

• Restate each motion and name the member who made it.
  • The presiding officer is supposed to restate each motion that’s properly before the board at every meeting. Robert’s Rules of Order Newly Revised (11^th), p. 39, ll. 8-10 (“In principle, the chair must state the question on a motion immediately after it has been made and seconded, unless he is obliged to rule that the motion is out of order[.]”).
• During voting, call on each member who participates electronically separately and by name.
  • This measure may not be necessary if the technology being used makes it clear how each member voted.
• If “yes” votes are recorded for unexcused failures to vote by members who are physically present or who have left without being excused, extend that rule to unexcused failures to vote by members who attend electronically.

Public Access to Meetings with Attendance Restrictions

Some public bodies have limited the number of people who may attend their meetings in light of mass gathering restrictions or social distancing guidelines. Others have totally banned in-person attendance at their meetings. Any public body that sharply restricts or prohibits in-person attendance must take reasonable steps to make its meetings publicly accessible by other means.

Recommendations

• Stream meetings live on an online platform that allows the public to see and hear the meetings.
• Provide a phone number that people without internet access can call to listen to the meetings.
• Consider posting recordings of the meetings online.

Public Comment Periods

Each BOCC must hold at least one public comment period at a regular meeting every month. G.S. 153A-52.1. Each city council must hold at least one public comment period at a regular meeting during any month in which it holds a regular meeting. G.S. 160A-81.1. Obviously, where boards have restricted or prohibited in-person attendance at meetings, people can’t take part in public comment periods in the usual way. It’s a good idea for those boards to offer virtual public comment periods that approximate traditional public comment periods. This view accords with Frayda’s advice in a prior blog post: “If public comments can’t be made in person, perhaps a reasonable accommodation would be to provide a sign up for people to provide their comment by phone call or video, or provide an email option for the public to provide written comments.”

Recommendations

• Allow people to post comments online or submit them by e-mail or text during the public comment period.
• Have the clerk or another official read aloud comments submitted by e-mail or posted online.
  • The board should prepare for the possibility that some comments will be abusive or obscene. Subject to constitutional limitations discussed in the blog post found here, city councils may adopt public comment policies that require decorum and prohibit abuse. E-mails and online comments that violate lawful public comment policies don’t have to be read aloud.
• Consider using an online platform or call-in number that will enable people to address the board during the public comment period.
  • The board will need to have the ability to mute speakers as necessary to maintain control of the meeting.

Public Hearings

Various state laws require city councils or BOCCs to hold public hearings before they take certain actions, such as adopting zoning ordinance amendments. (See here for a list of actions for which public hearings must be held.) As with public comment periods, a council or BOCC that has restricted or banned in-person attendance at meetings has necessarily impaired the ability of people to take part in public hearings in the usual way.

There’s no clear law in North Carolina on whether, or under what circumstances, boards may satisfy public hearing requirements through virtual public hearings. For this reason, the safest course is to delay action on non-urgent matters subject to those requirements until it’s possible to conduct hearings in person. The law permits a city council or BOCC to continue a public hearing in open session without further advertisement. G.S. 153A-52; 160A-81.

Recommendation

• If the board decides to hold a public hearing electronically, follow the recommendations for virtual public comment periods.

Quasi-Judicial Hearings

Remote participation in quasi-judicial hearings raises due process and other legal issues. It’s best to avoid conducting those hearings electronically. Any board that decides to hold a quasi-judicial hearing by electronic means should review the blog post by my colleague Adam Lovelady on this topic.