This advisory addresses the adjustments needed in conducting meetings of public schools and municipalities during the COVID-19 Pandemic and Governor Wolf’s recent shut down orders. The purpose of the public meetings and the Sunshine Act is to provide the public access to these meetings and the decisions being made. Thus, the more effort made towards transparency and inclusion, the better. While there may not be perfect answers that work in all circumstances, we can work toward the best possible solutions for the boards and the public by being adaptable, and accepting and adjusting to a bit of good faith trial and error.
In accordance with the Sunshine Law, all board meetings are to be held at public buildings with open public participation. However, if an official emergency declaration disrupts this traditional practice, a meeting by teleconference, webinar, or other electronic means is permissible to conduct business. The key to an alternative meeting is that it permits two-way communication.
If a board desires to conduct business “virtually” during this emergency, they should consider, among other issues that arise, the following:
- Clear Communication: The method they wish to employ to ensure that the board members can clearly communicate with each other and the administration/staff to ensure the careful conduct of their business.
- Public Participation: The method to ensure the public can participate and comment pursuant to §710.1 of the Sunshine Act. Keep in mind that virtual meetings may introduce new variables, both positive and negative, compared to a typical in-person meeting. In some meetings that have already taken place, many more members of the public joined the virtual meeting than typically attend the traditional ones.
- Notifying the Public: How to inform the public that the meeting is taking place virtually and how they can join in should they so choose. In this regard, it is advisable to advertise the virtual meeting and the link needed to join the meeting. It is also advisable to allow for a telephonic connection for those who cannot access the meeting via the internet or have some problem doing so.
- Troubleshooting: Listing a phone number for a member of the public to call should there be a problem connecting to the meeting. It may be helpful to delegate troubleshooting duties to an individual not participating in the substance of the meeting as to avoid a board member juggling multiple tasks on the spot. Hosting duties should similarly be assigned and practiced in advance to ensure accurate navigation of the platform and preparedness in the event of a problem.
- Recording the Meeting: The Office of Open Records of Pennsylvania strongly recommends that an audio recording of the meeting be kept and posted on your website shortly after the meeting for the public to access.
- Pledge to the Flag: As to the logistics of the pledge to the flag, a simple, effective solution is to have the Host of the meeting screen share a picture of the flag at the designated time.
- Method of Public Comment: Consider how members of the public will pose questions. We do not recommend requiring that questions be submitted in writing before the meeting. This has practical, Sunshine Law and First Amendment concerns. We also do not recommend that the public type in their questions during the meeting. The best method is to try to permit participation through the video or telephonic connection. The key is to simulate the experience of a standard, in-person meeting, and having the public ask their questions audibly in real time maintains standards such as time restrictions that could be complicated by reading typed comments and questions.
- Platform Logistics: As to the mechanics of the virtual meeting such as a Zoom meeting, we recommend considering functions such as limiting screen sharing to “Host Only”, disabling “Join Before Host”, disabling “File Transfer” to ensure there are no pictures/graphics posted by someone other than the Host and disabling “Allow Removed Participants to Rejoin.” Regardless of the platform, always explore ways to allow the Host of the meeting to maintain some level of control over how the meeting is conducted to ensure clear communication, and avoid undesirable and or inappropriate participation.
This list may not be exhaustive as there will likely be more issues that arise during this time and during the course of these meetings. For example, under the Borough Code, 25 Pa. C.S. §7501(d) states that a majority of members of the council must be physically present to conduct a meeting. This may not be possible nor advisable given the Governor’s Orders, and thus may not apply. While the problem with a rule such as this is obvious, we want to prepare for and anticipate additional problems as we continue into uncharted territory.
Finally, we point to a Sunshine Law guidance letter issued by the Pennsylvania District Attorneys Association. In that letter they state: “We would recommend that when officials are not able to comply with the Act, they seek other ways of complying with the spirit of the law, which is to ensure that the public at large has an opportunity to view their government in action. This may be accomplished through conference calls, video chats, transcription of meetings or otherwise recording the meeting and making the recording publicly available or otherwise accessible.” We think these suggestions listed above do just that.
We will continue to update this notice as these matters progress and more information and clarifications are available.
Brian J. Boland, Esq.
Brian F. Boland, Esq.