Sunshine, Electronic Meetings, and H.B. 197
Described as the “Robin Hood of Law” during his years of private practice, attorney and United States Supreme Court Justice Louis Brandeis’s enduring legacy is formed by two articles. While his first focused on personal privacy, Brandeis fixed his attention on the “duty of publicity” in his second. In his 1913 Harper’s Weekly article, the Robin Hood of Law famously wrote: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
As significant now as in the early 1900s, the phrase “sunlight is the best disinfectant,” and the principles animating the expression, have become sacrosanct across state legislatures including Ohio. Most states have adopted some form of “Sunshine Laws,” or legislation aimed at promoting transparency for public meetings (R.C. 121.22). But how can sunlight disinfect public meetings when the public faces actual infection? Can some “electric light” efficiently police the public’s path forward?
Responding to the COVID-19 pandemic, Governor Mike DeWine recently signed Amended Substitute House Bill 197 (“H.B. 197”) into law. Among other things, H.B. 197 modified the rules governing public meetings while the statewide emergency declared in Executive Order 2020-01D remains in effect, including requirements for in-person attendance and quorum, notice, and public access. As your city, township, school district or county determines the wisest approach for conducting public business under this new regulatory framework, hopefully I can help you anticipate some of the interesting legal and logistical issues ahead.
I. Attendance & Quorum – Section 12(B)(2) of H.B. 197
Public meetings and hearings may be conducted by teleconference, video conference, or other similar electronic technology. Members of public bodies, likewise, may “attend” meetings and hearings through the same means, participating and voting remotely. Remote attendance now counts towards quorum requirements.
II. Notice – Section 12(B)(3) of H.B. 197
In pivoting to remotely-attended meetings, local governments are only required to provide notice of meetings and hearings held “under this section” 24 hours in advance of the meeting to the public, media that have requested notification of a meeting (“requesting media”), and parties required to be notified (“required parties”). The notice must provide the time, location, and manner by which meetings will be conducted such that “any person may determine” thos details. However, if there’s “an emergency requiring immediate action,” the last sentence of Subsection 12(B)(3) authorizes an ad hoc meeting so long as the requesting media or required parties are immediately notified of the time, place, and purpose of the emergency meeting or hearing.
Under R.C. 121.22(F), which presumably still governs meetings and hearings not held “under this section,” there are three types of meetings – regular, special, or emergency. With respect to regular meetings, public bodies are required to provide notice of the time and place for the meeting. With respect to special meetings, public bodies are required to provide 24 hours of advance notice of the time, place, and purpose for the meeting. With respect to emergency meetings, the member or members calling the meeting are required to provide notice to the requesting media immediately.
As I read Section 12(B)(3), H.B. 197 seems to temporarily abandon the concept of regular and special meeting notice provisions to create two types of meetings during the declared emergency: (i) “meetings held under this section,” which require 24 hours of advance notice to the public, requesting media, and required parties; and (ii) “emergency meetings,” which require immediate notice to the requesting media and required parties. Although the statute doesn’t define the phrase “meetings held under this section,” presumably, any meeting in which members or the public attend remotely is a “meeting held under this section.”
III. Access – Section 12(B)(4) of H.B. 197
When conducting remotely-attended meetings, the public has to be able to attend and participate in a manner “commensurate with the way in which the meeting or hearing is being conducted,” regardless of whether the meeting is conducted by live-stream, radio, television, or teleconference. Applying the plain language of H.B. 197, the “commensurate access” requirement means meeting platforms should mirror the public’s access. By way of example, if the public meeting is being conducted through one of the more popular online video conference platforms (i.e., Zoom or Webex), then the general public should be able to observe the meeting through a link to the same online platform, even if their capacity to interrupt or interject during the meeting is restricted by the platform’s moderator.
Curiously, the last sentence of Section 12(B)(4) appears to contradict H.B. 197’s more broadly expressed authorization for meetings by teleconference inasmuch as it specifies the public be able to “observe and hear the discussions and deliberations of all the members of the public body, whether the member is participating in person or electronically.” Maybe a drafter’s oversight or imprecision, the word “observe” in that context connotes visual observation or viewing, especially when paired with the word “hear” by conjunction. Teleconference, on the other hand, naturally suggests telephone participation (or by audio means alone). That said, Section 12(B) provides, “[d]uring the period of the emergency…members of a public body may hold…meetings…by…teleconference” and Subsection 12(B)(4) continues, “[t]he public body shall provide the public access…commensurate with the method in which the meeting…is being conducted, including…call in information for a teleconference.”
Is visual access to meetings mandated so the public can see and hear discussions and deliberations among members? Or is “observe” better interpreted to mean “take note of,” given the multiple references to teleconferences. As a practical matter, I think the safest course is to (i) confirm the platform mirrors the access, and (ii) allow the public visual access to meetings by using one of the more ubiquitous online video conference platforms.
IV. Logistical Issues: Agenda Anticipation
Make no mistake – there will be some logistical bumps along the transition to remote meeting participation. The best way to overcome logistical issues is, by my estimation, to anticipate, over-prepare, and practice with your leadership team on a small-scale, trial run.
Anticipate how technological issues could impact agenda items, discussion and deliberation, and the public’s access…
- Do your meetings usually allow for public participation? In this context, what form will that participation take?
- Who will serve as the platform moderator for your meetings, if anyone? The Mayor? Board/Committee Chair? Law Director/Solicitor? Manager/Administrator?
- If something should go wrong during the meeting, who has been trained to fix issues that surface? Do you have an IT professional on speed dial or are you competent to problem-solve on the fly?
- Are members of the public body trained to use technology on their own devices? Who can they contact if they have trouble participating during a meeting?
- What about meeting flow? Do you customarily adjourn for Executive Session? How will you flex your technological platform to accommodate an adjournment? Will the “public record” consist of pre-and-post-Executive Session meetings, or just one meeting with intermittent silence on the record?
- Speaking of records, what about public records compliance obligations (R.C. 149.43)? Does your political subdivision have enough server space to store remote meeting videos? Does your platform automatically transcribe the meeting? What features on the technological platform are automatically activated?
- Have you thought through meeting interruptions and decorum? What if some anonymous party “trolls” the meeting to share incendiary statements within chat functionalities?
The remote access and public participation piece gets even more tricky in the context of quasi-judicial hearings. Section 12(C) of H.B. 197 provides, “the public body must establish a means, through the use of electronic equipment that is widely available to the general public, to converse with witnesses, and to receive documentary testimony and physical evidence.” Practically speaking, handling physical evidence, electronically and remotely, and receiving testimony/cross examination in connection with that evidence could present a significant logistical complications. What’s the best way to handle remote quasi-judicial hearings? Again, by anticipating how technological issues will impact the agenda and…over-preparing and practicing.
Finally, I encourage you to be patient with members of public bodies who may be technologically challenged, overwhelmed by the personal and professional implications of this pandemic, or simply frustrated by change. Justice Brandeis never promised the disinfectant of sunlight would be easily or straightforwardly applied. With changes in society and technology, transparency has always required a measure of creativity, foresight, and adaptability. And in a time where many are worried about actual infections, public bodies can lean on H.B. 197 to allow electric light, or in this case – access to electronic meetings, to police the path forward.
As your community navigates these changes, I expect you’ll develop questions based on the peculiarities of your city, township, school district or county. When you do, don’t hesitate to reach out by sending me an email at firstname.lastname@example.org. Serving public servants (and the public they serve) is one of my favorite parts of practicing law!
Attorney Brian Fox provides strategic counsel to cities, townships, school districts, and boards of county commissioners across the state of Ohio, and serves as the Law Director/Solicitor for the City of Madeira, Ohio and on the Board of Directors for the Port Authority of Butler County, Ohio. Please note that every community is different (e.g., charters, hierarchy, budgetary limitations, elected or appointed officials, etc.), so there is no “one size fits all” approach to responding to H.B. 197. If you have questions, Mr. Fox can be reached at 513-629-2706. The full text of legislative changes can be viewed here (p. 328-329 of Am. Sub. H.B. 197).