Clarification of Rules for Remote Meetings Under State Level State of Emergency: No More Waiting 24 Hours After Public Hearings!

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Frayda Bluestein

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At the beginning of the pandemic, a new statute regarding remote meetings– GS 166A-19.24— provided a roadmap for managing government business. Public officials have learned so much about how to do things differently. Shout out to all of you who have pivoted in so many new directions, to keep people safe and healthy, and keep the government moving.  The new rules for remote meetings, summarized in my blog post here, have worked well but they also raised a few questions. Luckily, several local government attorneys proposed some clarifying changes. [Special thanks to Mujeeb Shah-Khan (Monroe City Attorney) for shepherding the project.]  Three changes were ratified by the legislature and signed by the Governor in Session Law 2021-35 (House Bill 812). This blog summarizes the changes, which will become effective July 1, 2021, and apply to remote meetings held on or after that date.

1. Public Comments Following a Public Hearing
The language in GS 166A-19.24 (e), regarding public hearings, created some confusion:

A public body may conduct any public hearing required or authorized by law during a remote meeting, and take action thereon, provided the public body allows for written comments on the subject of the public hearing to be submitted between publication of any required notice and 24 hours after the public hearing.

Under this provision, when could a public body could take action? Could it take action right after the hearing, or did it have to wait 24 hours after the hearing?

The new law reads as follows:
(e) Public Hearings. – A public body may conduct any public hearing required or authorized by law during a remote meeting, and take action thereon, provided the public body allows for written comments on the subject of the public hearing to be submitted between publication of any required notice and 24 hours prior to the scheduled time for the beginning of the public hearing.

This means that there is no longer a need to wait 24 hours to take action, and public bodies can take action right after the hearing, provided they otherwise have authority to do so.

2. Last Minute Notice Changes.

The notice provision GS 166A-19.24 (b)(1) said:

The public body shall give proper notice under G.S. 143-318.12 and under any other requirement for notice applicable to the public body. The notice shall also specify the means by which the public can access the remote meeting as that remote meeting occurs.

It can happen that a meeting is noticed as in person, but a need to meet remotely arises. There was no provision as to how give notice of a switch to a remote meeting in a short timeframe.

The new law reads as follows:

(b1) If a public body has provided notice of an official meeting and one or more of the members of the public body desire to participate remotely after the issuance of the notice, the public body may amend the notice of the meeting to include the means whereby the public can access the remote meeting as that remote meeting occurs. Such amended notice of remote meeting shall comply with all of the following:

(1)  Be issued no less than six hours prior to the official meeting.

(2)  Be distributed in accordance with G.S. 143-318.12(b)(2) and (b)(3), as

applicable.

(3)  Be posted in accordance with G.S. 143-318.12(e).

This means that a public body can amend the notice at any time, up to 6 hours before the meeting, to move to a remote meeting. They will then be bound by all of the remote meeting requirements. One issue is left unresolved:  may a public body have a hybrid meeting with some members in person and some participating remotely. This remains an open question.

3. Presumption of Remote Meetings as Open Meetings. 

As a defense to any claims that might be made that a remote meeting was not “open” to the public under open Meetings law because the public cannot attend in person, the legislature added a statement setting out that a validly held remote meeting is open for purposes of the open meeting law.

The new law reads as follows:

(a) Remote Meetings. – Notwithstanding any other provision of law, upon issuance of a declaration of emergency under G.S. 166A-19.20, any public body within the emergency area may conduct remote meetings in accordance with this section and Article 33C of Chapter 143 of the General Statutes throughout the duration of that declaration of emergency. Compliance with this statute establishes a presumption that a remote meeting is open to the public.

 

As a reminder, these are all provisions that apply only when the Governor or the General Assembly declares a state of emergency (local declarations of emergency do not trigger the remote meeting provisions).  What happens when the current statewide state of emergency ends? What will the rules be regarding remote meetings then?  I think the law will simply go back to what it was before GS 166A-19.24. As a reminder, here is blog post I wrote at the beginning the pandemic before the adoption of that statute.https://canons.sog.unc.edu/meetings-and-public-hearings-under-the-coronavirus-state-of-emergency/.  It seems to me that there are practices that have been used during the pandemic’s state of emergency that could be useful going forward. However, the question of whether local governments may use remote participation outside of a state of emergency remains unclear.

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