PUBLIC BODIES BREAKING THE LAW IN THE NAME OF THE PANDEMIC
Beth Soja beth@smvt.com
If you are covering a public body that has resumed meeting in person but is forcing you to participate remotely, they are breaking the law.
Over the past year, the pandemic undeniably has changed the way citizens interact with public bodies and public officials. We have heard of public buildings that are almost fully locked down, barring the type of wander-into-someone’s-office visit that has been a hallmark of how some reporters cultivate sources and gather information. Traditional, in-person board and council meetings have given way to Zoom meetings and webcasts, live-streamed into people’s homes and onto their phones. Overall, the net result seems to be broader public engagement, even if more limited direct access to public officials. But as public bodies transition from being fully remote to in-person or partially in-person, what does this mean for public access to official meetings? Can public bodies return but keep the public at bay?
As long as North Carolina remains in a state of emergency, public bodies can hold their meetings remotely. North Carolina law defines a remote meeting as an “official meeting, or any part thereof, with between one and all of the members of the public body participating by [telephone, conference video, or other electronic means].” G.S. § 166A-19.24(i). Notice the key part of that definition: At least one member of the public body must be remote.
Instead of allowing members of the public to be present physically at a remote meeting, the law provides that any remote meeting “shall be simultaneously streamed live online so that simultaneous live audio, and video, if any, of such meeting is available to the public. If the remote meeting is conducted by conference call, the public body may comply with this subdivision by providing the public with an opportunity to dial in or stream the audio live and listen to the remote meeting.” G.S. § 166A-19.24 (b)(9)
However, as more vaccines become available and Covid-19 metrics trend in a positive direction, some public bodies are starting to meet in person again. In order for a public body to insist that the public may participate remotely only, instead of in person, at least one member of the public body must also participate remotely. This piece is important in practice. Having at least one member participate remotely will encourage the public body to ensure that the internet, Zoom or livestream connection remains stable. It means that the public body won’t “forget” to reactivate the livestream when they return from a closed session. And it will discourage things like members mumbling or having conversations facing away from the video.
The requirement that at least one member is remote will go some distance to assure that remote participation by the public isn’t sidelined, intentionally or unintentionally. Simply put, a public body may not meet fully in person and exclude the physical presence of members of the public. If all members of a public body are present in person, that is simply a regular, official meeting under the “regular” Open Meetings Law. Members of the public must be allowed to attend in person. G.S. § 143-318.10; G.S. § 166A-19.24.
Should remote public meetings be here to stay in North Carolina even after the state of emergency has expired? That’s a question the legislature will answer, but it’s possible that the state could see a push in that direction.
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