Since the onset of the COVID-19 pandemic, Rhode Island public bodies have been authorized to meet remotely pursuant to Executive Orders issued by the Rhode Island Governor’s Office. This blog reported here and here on the initial Executive Orders, which overrode certain portions of Rhode Island’s Open Meetings Act, R.I.G.L. Chapter 42-46 (the “Open Meetings Act”). Since that time, the Rhode Island Governor’s Office has been issuing one-month extensions of the Open Meetings Act Executive Orders pursuant to the emergency powers provided in Article IX of the Rhode Island Constitution and Chapters 30-15 and 23-8 of the Rhode Island General Laws. Accordingly, most Rhode Island public meetings at this time continue to be held remotely pursuant to Executive Order.
With life now returning to normal, the Rhode Island legislature has begun to consider whether remote meetings of public bodies have value as a statutory matter, in the absence of an Executive Order. On June 25, 2021, the Rhode Island House of Representatives voted 62-3 (10 members not voting) to pass a bill, 2021-H 5891 Sub A (the “OMA Bill”), which would make significant revisions to the Open Meetings Act. The provisions in the OMA Bill are drafted to sunset on July 1, 2023, meaning that the draft legislation envisions a roughly two-year trial period for the proposed new Open Meetings Act rules.
In substance, the OMA Bill amends the Open Meetings Act by removing the sections of R.I.G.L. 42-46-5 that prohibit meetings of public bodies via electronic communication. In its current form, the Open Meetings Act only permits public bodies to meet remotely for purposes of scheduling a meeting, and to accommodate those with disabilities or on active duty in the armed services of the United States. At the same time, the OMA Bill introduces three new categories of public meetings: (i) an “in-person meeting”, (ii) a “virtual meeting”, and (iii) a “hybrid meeting”. Under the proposed legislation, an in-person meeting is one where all members of the public body and all members of the public are attending and participating in the meeting in the same physical location. In contrast, a virtual meeting occurs when all members of the public body and all members of the public are attending and participating in the meeting remotely through teleconferencing or audio/video conferencing technology. Finally, a hybrid meeting occurs when some members of the public body and/or some members of the public are attending and/or participating in-person in the physical location of the meeting, and others are attending and/or participating in the meeting remotely.
In accordance with Section 42-46-16(c) of the OMA Bill, for any virtual meeting or hybrid meeting, the public body would be required to provide the public “without subscription, toll, or similar charge” remote access to the meeting, i.e., “contemporaneous and effective public access to the deliberations of the public body through a live transmission of the meeting over the internet, via teleconference or video conference, television, or other broadcast media that allows the public to clearly follow the proceedings of the public body while they are occurring.” Interestingly, and unlike the Open Meetings Act Executive Orders issued during COVID-19, the OMA Bill clearly provides that meetings held in closed executive session pursuant to Sections 42-46-4 and 42-46-5 of the Open Meetings Act (meaning with no public access provided), could be held as any of the three categories of meetings, including as hybrid meetings or virtual meetings.
Although the OMA Bill would permit all public bodies to hold meetings in-person, virtually, or hybrid through the end of 2021, the proposed legislation would introduce a paradigm shift for a large swath of public meetings beginning on January 1, 2022. Whereas public meetings under the Open Meetings Act have traditionally been required to take place in-person, the OMA Bill makes a dramatic proposal to actually prohibit many public bodies from meeting in-person. The OMA Bill, in proposed Section 42-46-16(e)(1), states that “[a]ll city and town councils, all elected and appointed school boards and school committees, all zoning boards, all planning boards, and all quasi-public boards, agencies and corporations (as defined in § 42-155-3 and provided for in the findings in § 42-155-2) shall not have an exclusively in-person meeting.” Certain exceptions to this rule are contemplated, for example, for site visits and zoning and planning workshops (See Section 42-46-16(e)(1)), but the OMA Bill would require any public body that is prohibited from holding an in-person meeting to post online, prior to the start of the open meeting, all documents that are to be discussed and/or voted on at the meeting. This dramatic shift envisioned by the OMA Bill likely reflects positive experiences during the COVID-19 period, under which it has arguably been easier for the public to attend and participate in public meetings due to the ubiquitous presence of teleconferencing and video conferencing technology.
The OMA Bill has not been heard by the Rhode Island Senate or enacted into law. However, it is likely to reflect a changing tide in the Ocean State, ushered in by the “new normal” that we have grown accustomed to during the Great Pandemic. Although the issue of remote meetings of public bodies remains subject to legislative uncertainty, it seems reasonably likely that remote meetings will not be going away any time soon.