On July 11, 2022, Governor Cooper’s office published a press release indicating that the statewide state of emergency will end on August 15, 2022. At that point, Section 166A-19.24, which provides explicit authority for remote meetings, will expire. Many elected and appointed boards across the state are unsure if they have the legal authority to continue meeting remotely after the state of emergency ends. My colleague Frayda Bluestein has addressed this question for elected boards in her earlier blog post, so this post will focus solely on appointed boards.
Why is the analysis for elected and appointed boards different?
For the remote meetings analysis, the main difference between elected and appointed boards is the statutory quorum requirements. As Frayda’s blog (linked above) explains, the quorum and voting statutes for city and county governing boards seem to require in-person attendance. (See G.S. 160A-74, 160A-75; G.S. 153A-43). It is therefore unclear if remote participants can count toward quorum in city and county governing board meetings after the end of the state of emergency ends. The same concern does not necessarily exist with appointed and other advisory boards because these boards often do not have statutory quorum requirements.
How do I know if an appointed board can continue to meet remotely?
The first thing to research is whether the board at issue has any statutory quorum, voting, or other requirements for meetings. As noted above, many appointed boards do not, but it will be important to verify on a case-by-case basis. If there are statutory quorum, voting, or other meeting requirements, evaluate whether they seem to require physical presence. Do they use the phrase “present?” Were they enacted at a time when presence likely meant physical presence? If so, that may be an indication that the appointed board at issue should be treated more like an elected board for remote meetings purposes. If there are no statutory requirements or if they make no mention or implication of physical presence, the appointed board may have more freedom to develop remote meetings procedures.
Aside from quorum, local governments should evaluate whether there are any other legal limitations that might impact each appointed board’s ability to conduct remote meetings. For example, remote meetings may pose constitutional due process issues for appointed boards that conduct quasi-judicial hearings, as my colleague Adam Lovelady explains in this blog.
With what authority can appointed boards continue to meet remotely?
There are at least two possible sources of authority for remote meetings for appointed boards – the open meetings law and appointed boards’ own rules of procedure.
Section 143-318.13 of the open meetings law describes “electronic meetings” as meetings that occur via teleconference “or other electronic means.” Under this section, if a public body conducts a teleconference or a meeting using other electronic means, the public body must provide a location and means by which the public can access the meeting. The “other electronic means” language could encompass videoconferencing and other types of modern remote meetings as a matter of plain meaning. However, there is no clear evidence that the legislature intended “electronic meetings” to extend to modern notions of remote meetings. Assuming electronic meetings include remote meetings as they’re currently understood, the section seems to at least recognize that some types of remote meetings could occur lawfully. Still, contemplating that remote meetings could be lawful is different than explicitly making them lawful. Section 143-318.13 does not explicitly authorize remote meetings.
The legislature appears to recognize the ambiguity surrounding legal authority for remote meetings in subsection (h) of G.S. 166A-19.24. There, the legislature notes that the remote meetings authority in Section 166A-19.24 does not supersede “any” authority for remote meetings in the open meetings law. The legislature’s use of the word “any” recognizes that there may be authority for remote meetings in the open meetings law without reaching a verdict either way. If subsection (h) had referenced the authority (rather than “any” authority) for remote meetings in the open meetings law, there might be a much stronger case that the open meetings law specifically authorizes remote meetings. There are unfortunately no cases interpreting Section 143-318.13, so without further guidance from the legislature, local governments cannot be certain that the open meetings law authorizes remote meetings. At this stage, good-faith arguments can be made either way.
Outside of the open meetings law, appointed boards’ own local rules may provide authority for remote meetings. City councils and county boards of commissioners may either adopt local rules of procedure for their appointed and other advisory boards or empower those boards to adopt their own rules. (See G.S. 160A-146 (cities); G.S. 153A-76 (counties)). Such local rules cannot conflict with state law, charter, or general parliamentary procedure principles. If a governing board has delegated procedural rule-making authority to an appointed board, the appointed board should be able to adopt local rules and policies regarding remote meetings. Such policies would not conflict with state law currently (again, assuming there are no applicable quorum or other in-person meeting statutes for the board at issue) or general principles of parliamentary procedure. Practitioners should also verify that their city charter does not contain any prohibitions on remote meetings as well before enacting such policies.
Any remote meetings policies should likely define what constitutes a remote meeting for purposes of that board. Is it when any one member of the public body participates remotely or only when a certain number of people are remote? Does it include teleconferencing and videoconferencing? Policies should also note that remote participants can count toward quorum, assuming that the boards enacting these policies are not bound by any specific statutory requirements. Taken together, appointed boards may adopt local rules regarding remote meetings and continue meeting remotely according to their adopted procedures. Since there may not be legal authority for remote meetings outside of these local rules, appointed boards should adopt the rules formally first before attempting to continue remote meetings.
What about notice requirements?
If boards rely on Section 143-318.13 as their source of legal authority for remote meetings, must they follow that section’s notice requirements? Section 143-318.13(d) notes that only subsection (c)—which restricts actions by reference—applies to remote meetings, at least as defined in Section 166A-19.24. In other words, according to subsection (d), Section 143-318.13’s notice requirements do not apply to remote meetings during a Governor- or General Assembly-declared state of emergency. However, after Section 166A-19.24 expires, are we to assume that Section 143-318.13’s notice requirements do apply to remote meetings? What types of remote meetings do they apply to, since Section 143-318.13 does not clearly define electronic or remote meetings and Section 166A-19.24’s definition will no longer be active? Neither Section 143-318.13 nor Section 166A-19.24 answers these questions.
If we assume that Section 143-318.13(a) applies to remote meetings after the state of emergency ends, the section seems to require providing a location and a means of access. Does providing a location mean that local governments need to provide a physical location where citizens can log in to the meeting or access the teleconference as a group? On the one hand, the plain language of the statute does not reference a physical location, so there is some argument that providing the remote access information is sufficient as the “location”. On the other hand, the open meetings law was enacted in 1979 such that the legislature was likely contemplating a physical location. Moreover, subsection (a) references charging a fee to defray the costs of providing equipment and a location, which may also suggest a physical location. Unfortunately, there are no cases interpreting this section in any context, let alone in the remote meetings context, complicating any effort to reach a firm conclusion.
One notice requirement from Section 143-318.13 that seems clear is that public bodies must provide a means of access. This procedure likely requires providing the Zoom link, other virtual meeting link, or teleconference information to the public in advance of the meeting. While Section 143-318.13 does not provide a deadline for this notice, it would make sense to include this information in the general meeting notice.
Takeaways
All in all, the legal landscape for remote meetings is very uncertain. For appointed boards without statutory quorum or other meeting requirements, continuing remote meetings may be legally permissible as a matter of local procedural rules. The open meetings law may also provide authority for remote meetings for these types of boards. If appointed boards rely on Section 143-318.13 as a source of authority, they likely need to provide the public with a way to access the remote meeting. Section 143-318.13 also requires providing a location, and a safe harbor approach would be to provide a physical location for the public to join the remote meeting as a group.
