By Paul H. Green, Esq. and Christohper J. Sedefian, Esq.

Public entities covered by the provisions of the Open Public Meetings Act (“OPMA”), including boards of education, have been forced to hold public meetings remotely during the COVID-19 pandemic. The Legislature has authorized the Director of the Division of Local Government Services, in the New Jersey Department of Community Affairs, to promulgate rules and regulations for remote public meetings held by local public bodies during a Government-declared emergency. Pursuant to this authority, the Director recently published emergency regulations, codified as N.J.A.C. 5:39-1.1 through 1.7. These regulations are currently in effect and are being proposed for permanent adoption. The regulations are much more detailed than prior guidance and govern several critical areas of meeting protocols. Highlights of the regulations include the following:

Room Capacity Limits

The default standard remains a physical meeting with all members of the public body and the public in attendance at a single location. However, so long as capacity restrictions are in place which reduce the number of individuals that can be present in the meeting room to an amount below that reasonably expected for the public meeting, the local public body must either:

1. Hold the meeting at a different location with adequate capacity for the reasonably expected attendance by the public; or
2. Hold the meeting as both an in-person meeting and a remote public meeting.
   • Because Executive Order No. 173 (2020) limits most indoor gatherings to 25% of a room’s capacity or 25 people, whichever is less, the option to hold the meeting at a different location is inapplicable to those public bodies which reasonably expect more than a few members of the public to attend. We are of the opinion, also shared by the New Jersey School Boards Association’s legal staff, that boards of education do not qualify for any of the available exemptions permitting a larger indoor attendance limit. This means that many boards of education will need to hold meetings either completely remotely or in a hybrid format.
   • Of greater concern is the regulation’s prohibition on conducting any in-person meeting if the room capacity does not permit any member of the public to attend. The regulations do not define what constitutes an in-person meeting. Our recommendation is that if a quorum of the public body’s membership will be present at the meeting location and it is reasonably expected that total attendance will exceed the permissible indoor gathering limit, arrangements should be made to both conduct a hybrid meeting and admit members of the public to the meeting location up to the indoor attendance limit, with appropriate physical distancing. This may require holding the meeting in a larger venue than is typically used. Once that limit is reached, other members of the public must attend remotely. If less than a quorum of the board is physically present at the meeting location, we believe the meeting may be conducted by remote means with no public physically in attendance, even if some board members or administrators are present at the meeting location.
   • Note further that the regulations do not usurp any prior ability to conduct a meeting electronically under the OPMA, nor do they prevent a public body from making an in-person meeting available electronically under circumstances outside a public emergency.

Minimum Technological and Procedural Requirements for Remote Public Meetings

Local public bodies must use an electronic communication technology that is routinely used in academic, business, and professional settings. Members of the public must be able to access the technology free of charge. The service used must be authorized for the Federal Risk and Authorization Management Program Moderate Impact Level or otherwise provide proof of satisfactory cybersecurity internal controls (the major commercial platforms such as Microsoft Teams, Zoom, Google Meet or CiscoWebex meet or exceed this standard).

Participant capacity via virtual platforms should be consistent with the reasonable expectation of the public body for public meetings of the type being held but must have capacity for at least 50 public participants beyond those persons required to conduct the meeting’s business.

The local public body must be able to mute the audio of members of the public; public members must also be able to mute themselves.

Local public bodies may use, but are not limited to the use of, the following types of technologies: audio-only teleconferencing; electronic communications platforms with video and audio; and Internet-accessible technology such as live-streaming. (However, as noted below, where a remote public meeting is held by audio and video, the public must have the opportunity to participate in the meeting in both audio and video capacities.)

If the public body uses an electronic communication platform or Internet-accessible technology to hold a remote public meeting, it must also provide a telephonic conference line to allow members of the public to dial in by telephone to listen and provide public comment. Any telephonic audio conference line must have a queueing or similar function to regulate public comment. (Many electronic communications platforms, such as Microsoft Teams and Zoom, include telephone dial-in numbers and call queuing capability.)

Any presentations or documents that would otherwise be viewed or made available to the public physically attending a meeting must be made visible on a video broadcast of the remote public meeting or posted to the local public body’s website. If a document would be made available to members of the public in hard copy while physically attending a meeting, the document must be made available in advance of the meeting through a link either on the meeting notice, or near the posting of the meeting notice on both the website and at the building where the meeting would otherwise be held.

Public Comment During Remote Public Meetings

Local public bodies must allow members of the public to make public comment during the meeting by audio, or by audio and video if the meeting is held over both audio and video. The public body may require commenters to identify themselves prior to speaking.

The local public body must also allow public comments to be submitted prior to the meeting, to the official responsible for creating the meeting agenda, via electronic mail and in written letter form by a reasonable deadline.

The local public body is permitted, at its discretion, to accept text-based public comments during the meeting.

Public comments submitted before the meeting through electronic mail or via written letter must be read aloud and addressed during the meeting in a manner audible to all participants and the public.

Where the local public body imposes a reasonable time limit on public comments, it can impose the same limits on the reading of written comments. Each comment must be read from the beginning until the time limit is reached. While the local public body is not required to read duplicate comments, it must note them for the record with the content summarized.

Local public bodies are required to adopt by resolution standard procedures and require­ments for public comments made both during the meeting and for comments submitted in writing ahead of the meeting. The procedures and requirements, as well as an explanation of the audio muting function, must be announced at the beginning of the meeting. The following procedures are required:

1. The local public body shall facilitate a dialogue with the commenter to the extent permitted by the technology;
2. If a member of the public becomes disruptive, the individual will be muted and will be warned that continued disruption may result in them being prevented from speaking during the meeting or being removed from the meeting; and
3. A member of the public who continues to act in a disruptive manner after receiving an initial warning may be muted while others are allowed to proceed with questions or comments. If time permits, the disruptive individual will be allowed to speak after all other members of the public were given the opportunity to comment. Should the person remain disruptive, he or she may be kept on mute for the remainder of the meeting or removed from the meeting.
   • Note that a requirement to facilitate a dialogue with a commenter, if read literally, goes well beyond current understanding of the scope of public comment under the OPMA. We do not read facilitation of a dialogue to mean anything more than basic communication to ensure the commenter is being heard, and recommend that boards not deviate from the concept that public comment is typically for the purpose of public input and is not a debate session with board members or administrators.

Notice of Remote Public Meetings

Adequate notice transmitted to at least two newspapers for potential publication may occur via electronic mail or other electronic means that is accepted or requested by the newspaper.

In addition to all information regularly required, “adequate notice” for remote public meetings must also include clear and concise instructions for accessing the remote public meeting, the means for making public comment, and the location where relevant documents will be made available, if applicable.

Electronic notice of remote public meetings may also be issued in lieu of or in addition to adequate public notice. The electronic notice must be posted on the public body’s website, as well as the main access door of the building where the public body would routinely attend public meetings in person and must be viewable from the outside. If the local public body elects to issue electronic notice in lieu of adequate public notice, the public body must limit public business discussed or effectuated at the meeting to matters: 1) necessary for the continuing operating of government and which relate to the emergency declaration connected with the declared emergency; or 2) requiring decision during the remote public meeting due to imminent time constraints.

Where the local public body anticipates conducting remote public meetings for a series of regularly scheduled meetings advertised in its annual notice, the annual notice must be revised at least seven (7) days prior to the next regularly scheduled meeting. It must indicate which meeting(s) will be held remotely and contain clear and concise instructions for accessing those meetings, the means for making public comment, and the location where relevant documents will be made available, if any. The revised annual notice must also be posted on the website and to the door of the main public entrance to the building where the public would routinely attend public meetings.

If the local public body is required to or regularly provides a meeting agenda at its meetings, the local public body must make a copy of the agenda available for download through a link on either the meeting notice or near the posting of the meeting notice on the website. The notice must also be posted at the building where the meeting would otherwise be held.

Opening Statement at Remote Public Meetings

At the beginning of every remote public meeting, the presiding individual must publicly announce and cause to be entered in the minutes, an accurate statement indicating the following:

1. Both adequate and electronic notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided; or
2. Only electronic notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided, and that discussion and effectuation of public business will be limited to only those matters: a) necessary for the continuing operating of government and which relate to the applicable emergency declaration; or b) requiring decision during the remote public meeting due to imminent time constraints; or
3. That adequate notice and electronic notice was not provided, (e.g., an emergency meeting), in which case such announcement shall state the following:
   • The reason(s) why the matter(s) discussed are of such urgency and importance contemplated by the applicable law, and the nature of the substantial harm to the public interest likely to result from a delay in the holding of the meeting;
   • That the meeting will be limited to discussion of and acting with respect to such matter of urgency and importance;
   • The time, place and manner in which notice of the meeting was provided; and
   • Either that the need for such meeting could not reasonably have been foreseen at a time when adequate notice and/or electronic notice could have been provided; or if same could reasonably have been foreseen, the reason why adequate notice and/or electronic notice was not provided.

Executive or Closed Session During Remote Public Meetings

Local public bodies must ensure that audio or video of executive or closed session cannot be accessed by the public. The public body is permitted to use a separate non-public conference line or e-platform session to accomplish this.

Checklist

Public bodies should immediately take the following steps:

• Ensure the communications platform used for remote meetings meets the regulatory requirements;
• If in-person meetings will be held, determine whether the existing meeting location will safely permit members of the public to attend; if not, identify an appropriate alternate venue;
• Revise the annual notice of meetings to include appropriate notice of remote or hybrid meetings;
• Review and, if necessary, revise the meeting notice to ensure appropriate notice is provided for remote access and public comment;
• Prepare and adopt a resolution specifying the procedures for public comment;
• Set up telephone call-in and queuing capability as an option for public comment;
• Determine whether any steps need to be taken to provide for online access to meeting agendas or documents and provide appropriate notice of same;
• Review the opening statement to ensure compliance with existing OPMA requirements and the new regulations.

Conclusion

The new emergency regulations establish important protocols that local public bodies must follow when holding remote public meetings. Compliance with the regulations is important to avoid legal challenges to the conduct of public meetings. Accordingly, we recommend that local public bodies review their current procedures to verify that they are acting in compliance with the regulations.

For more information on this Legal Alert or related issues, or for assistance in complying with the new regulations, please contact the school law attorneys at Schenck Price.

DISCLAIMER:  This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.