Shortly after declaring a State of Emergency with respect to the COVID-19 pandemic, and in light of the desire to avoid large in-person gatherings, Governor Lamont issued Executive Order 7B, which provides that the in-person open meeting requirements of Connecticut’s Freedom of Information Act (“FOIA”) were suspended so as to permit a public agency to 1) meet without in-person public access to such meetings, and 2) hold such meetings remotely by conference call, videoconference or “other technology”, provided that certain conditions were met (e.g., the public having the ability to view or listen to each meeting “in real time, by telephone, video, or other technology”). https://schoollaw.pullcomblog.com/archives/governor-lamonts-executive-order-and-the-foias-open-meetings-requirements/
While Executive Order 7B permitted public agencies to meet remotely (with no public attendance), it did not require such remote meetings. Indeed, the Executive Order that limited indoor gatherings for “social and recreational purposes” (Executive Order 7N) expressly stated that it did NOT apply to government operations/functions. Even in the earlier or “worst” days of the pandemic, in-person board meetings were not banned by either Executive Order 7B or the Executive Orders limiting the size of gatherings.
In light of somewhat improving public health conditions, public agencies (such as school boards) began to consider the return of “old fashioned” in-person meetings, or in the alternative, “hybrid” in-person meetings, with board members being able either to attend the meeting in-person or participate remotely, and with the public largely attending remotely (e.g., by “Zoom”, livestreaming, and the like). The common belief was that such “hybrid” meetings were permitted by Executive Order 7B. https://schoollaw.pullcomblog.com/archives/covid-19-and-in-person-gatherings-what-can-schools-do-and-how-many-can-we-fit-in-the-room/ However, as a result of some (perceived) gaps in Executive Order 7B, there was a (perceived) need to have further guidance on the issue of “hybrid” meetings. Accordingly, on October 25, 2020, Governor Lamont issued Executive Order 9H, which expressly provides for “hybrid” meetings.
Specifically, Executive Order 9H provides that any municipal agency, board, commission, council or local legislative body (and, in a municipality where the legislative body is a town meeting, the board of selectmen) may hold a public meeting or hearing that provides for remote participation in its entirety, or for remote participation in conjunction with an in-person meeting (i.e., “hybrid meeting”). Executive Order 9H further states that such remote participation shall include the opportunity to offer public comment (if otherwise generally permitted at such meetings) and the ability of electors/qualified voters to vote, if eligible at any meeting or annual/special town meetings.
Executive Order 9H requires that officials conducting hybrid meetings make provisions to allow at least some members of the public and press to attend in the same location as the officials conducting the meeting in a manner consistent with public health guidance for limiting the transmission of COVID-19. Executive Order 9H further requires municipal bodies conducting in-person or hybrid meetings to consult with and take those steps recommended by local or state public health officials to conduct these meetings in a manner that significantly reduces the risk of transmission of COVID-19. A somewhat elliptical provision of Executive Order 9H provides that remote and hybrid meetings are required to proceed in a manner “as closely consistent with the applicable state laws, town charters, municipal ordinances, resolutions or procedures as possible” and in compliance with the open meeting provisions set forth in the FOIA, but as modified by Executive Order 7B. This provision leaves it unclear regarding how much of an agency’s bylaws (or even Robert’s Rules of Order, if used by the agency) much be followed, but at the very least, the provisions of both Executive Order 7B and 9H would supersede any contrary “local” provisions.
In order to safeguard a board member with concerns about attending meetings in-person, Executive Order 9H provides that no member of any municipal agency, board, commission, council or local legislative body shall be denied the opportunity to participate and vote in any meeting or proceeding using remote technology if such member requests to do so. Any such member is allowed to request to participate remotely in all meetings for the duration of the “public health and civil preparedness emergency” and cannot be required to file an individual request for each meeting.
What Does This All Mean? More guidance may still emerge from the Governor’s office. However, as per the Executive Orders that have already been issued, a board can have a “hybrid” in-person meeting, with 1) board members being able to attend in-person or remotely, and 2) the public largely attending remotely. If having a hybrid meeting, the board could limit attendance consistent with health guidance, but it cannot prohibit attendance by the public (which was arguably permitted by Executive Order 7B). Simply put, while it is allowed to bar the public from attending fully “remote” meetings, a public agency that holds an in-person or even a “hybrid” meeting must allow the public to attend, up to any capacity limits in place consistent with public health (and social distancing) guidance. In order to avoid a situation where demand for space at the meeting by the public exceeds the in-person capacity limit, it may be best for the meeting notice to suggest that the public participate by remote means.
It is our understanding that the Governor’s office still recommends that local governmental board meetings be held remotely when possible. That being said, boards considering the possible resumption of live meetings should first contact their local health officials, and such officials may look to the current capacity limit(s) on indoor “social and recreational” gatherings as being instructive.
PLEASE NOTE: The author will be presenting during CABE’s Virtual Legal Issues Workshop on Wednesday, October 28, 2020 on the FOIA and the conducting of school board meetings in a “virtual” or “hybrid” setting.