AZ League Connection

The League's Monthly Online Newsletter

Issue 203: March 2020

Remote Conferencing and the Open Meeting Law: What You Need to Know

In recent days cities and towns have been forced to adapt their government operations to address the worldwide pandemic known as COVID-19. One of the most frequently asked questions has been how to hold a council meeting in compliance with the Open Meeting Law’s mandate that the public has the right to attend and listen to the meeting when federal and state regulators recommend that no more than 10 individuals be together at the same time to reduce the spread of the virus.

Previous guidance by the Attorney General indicated that the council was expected to provide a public space for the public to observe and hear all telephone, video or online communications but the Attorney General recently issued an informal opinion on March 13, 2020 stating it is not prohibited for members of the public to address the council through technological means. Council members can participate by telephone or video or internet conference if remote conferencing is not prohibited by the city or town and it is noted on the agenda and in the minutes. Based on the guidance from the Attorney General, there is no restriction on the public’s right to attend the meeting or address the council via technological means, but the question remains how this is accomplished without violating the open and transparent intent of the law. The recent informal opinion reiterates the required steps to take for the council when using remote conferencing.

First, the council must adhere to all posting and agenda requirements. If remote conferencing will be used for the council meeting, the city or town should post a statement on its website informing the public that a meeting will be held remotely through technological means and provide the information for the public to access the meeting. This can be a website location for a video conference or live stream. If the council is using a conference call number for telephonic meetings, the conference number and any required access codes should be provided to the public.

In addition to the website, it is important to provide instructions on how to access the meeting on any meeting notices and agendas. Additionally, the Attorney General suggests providing technical support for questions, concerns, or difficulty accessing a meeting.

Second, the council members and the public must be able to hear the council members on the telephone or other technological device. If remote conferencing is not routinely used, a staff member may want to provide helpful tips and tricks to members using the technology such as using the mute button unless the member is speaking to eliminate background noise that interferes with the discussion; instructing members against placing a call on hold to avoid hold music from playing over the conversation; and not to use the speaker function on their phone when talking if there is loud or distracting noise in the background.

Third, the city or town should develop procedures to clearly identify members that are participating by telephonic, video or internet communications. This includes during a general discussion, when questions are raised and responses given, and when a motion is made. A roll call is the best practice to comply with the law’s requirements to identify each member when voting.

Additionally, the public must be able to hear the council members. Members should be encouraged to speak slowly and carefully since it can be difficult to hear when people talk fast or inadvertently talk over each other.

Further, the meeting minutes must identify those council members who participated by telephonic or video communications. A recording of the meeting is not required but if the capability exists it is a helpful tool to post the recording to provide additional access to those who could not participate at the time of the meeting.

A call to the public is not required under state law but it may be required by individual city or town codes. In the informal opinion, the Attorney General states that the open meeting law does not prohibit members of the public from addressing the council through technological means. If the city or town proceeds with technological public participation, the city or town will want to provide instructions on how the call to the public will access the technology and the procedure for when to speak, including identifying oneself prior to speaking.

Additionally, if a two-way form of communication is not possible, the city or town may request public comments to be submitted in writing prior to the meeting. These submissions can be read during the meeting allowing those comments to be part of the formal record.

Executive Sessions
Arizona law outlines seven areas that can be discussed in executive session and requires a public vote to move into an executive session for one of the listed statutory purposes as identified on the agenda. Once in executive session, those discussions and materials are confidential and it’s important to develop a process to allow those discussions to be maintained in private when using remote conferencing technology.

Other Public Hearings
While the March 13, 2020 informal opinion provided some direction on the use of technology in council meetings, it did not address other types of public hearings that may be required by law. Depending on the statutory requirements, the use of technology for public comment may be challenging or inadvisable. These scenarios will need to be reviewed on a case-by-case basis in consultation with your attorney.

Conclusion
The Open Meeting Law requires a meeting to be conducted openly and for notices and agendas to contain information to provide the public with information reasonably necessary to inform the public of the matters to be discussed or decided. If technology will be used to facilitate a council meeting during this public health emergency, it is imperative that steps be taken to instruct the public about accessing the meetings in order to fulfill their right to attend and listen under the open meeting law.

Resources
Attorney General Informal Opinion (dated March 13, 2020)
Arizona Agency Handbook – Chapter 7 Open Meeting Law
League of Arizona Cities and Towns – COVID-19 Information

 

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