The Basics for Virtual Public Hearings – How to be Successful and Efficient
Posted on: May 21, 2020
By: Joshua Brookstein & Neera Roopsingh
The current pandemic is changing every aspect of life and in response, the legal community is adapting and changing accordingly. A tenet of municipal governance is the requirement to hold public hearings and meetings. Traditionally, such meetings were held in person. Although, New York State law has allowed video meetings for a long time, agencies rarely utilized this option. Under the Public Officers Law, board members could attend a public meeting via videoconference as long as the public notice of the meeting stated that video conferencing would be utilized, and that the notice identified the location of the meeting and that the public had the right to attend the meeting at any of the meeting locations. However, since the COVID-19 pandemic, virtual meetings have become the norm, and may well become the method of choice for hearings for months ahead. In response to the health crisis, Governor Cuomo has issued Executive Orders which temporarily dispenses with the requirement for the public to physically be present at a meeting or public hearing.[1] The Governor’s Executive Orders have also allowed for teleconference hearings that aren’t otherwise allowed under the applicable statute.
Proper notice has always been, and will remain, a strict requirement under the law. Municipalities conducting a virtual public hearing would be well advised to continue strict adherence to this requirement. Further, notice of virtual hearings require additional information not ordinarily included in a notice of in- person hearings. Notice for a virtual hearing should contain:
- The name of the public body holding the hearing;
- The date and time of the hearing;
- The method that the public body will be utilizing to conduct the hearing, i.e. videoconference or teleconference;
- Means by which the public can view or listen to the hearing (i.e. conference call number, Zoom Meeting ID and Password); and
- The manner in which an individual may submit comment, for example via e-mail, the deadline to receive such comments, or whether the hearing will be held open for a specific number of days to receive such comment, and that the written comments will be made part of the record.
Meeting minutes are still required, and it is best practice to have a stenographer present during the hearing as meetings must be recorded and transcribed.
Regardless of which platform (Zoom, Microsoft Teams, conference call etc.),the public body will utilize to conduct the hearing, it may be a worthwhile investment to hold a “test meeting”, especially if that meeting is your first virtual meeting. A “test meeting” will allow municipal staff and public body members to practice and gain familiarity with the platform being used and to formulate a plan of contingencies based on technological problems which arise during the test. From a practical standpoint, it can also help Board members practice identifying themselves before speaking so that the record is clear. Holding a test meeting will also help ensure that every Board member can connect to the platform and use the microphone and camera to guard against any potential quorum issues that can arise due to not being able to log on. A test can also ensure that the host of the meeting can control the microphones of participants, so as to help keep the lines of communication open and the record clear. It will also allow the Board members and staff to practice sharing their screen, to display exhibits, documents, or plans should the need arise during the actual meeting. Even more importantly, however, it will allow for practice in addressing public comments during the hearing, such as having members of the public sign up to speak so that individuals are not speaking over each other. This will ensure that the public has the opportunity to voice any opposition, support or concern for any proposed project or issue contemplated by the hearing, thus ensuring a “meaningful opportunity” to be heard. In turn, the Board would be fully aware of the public sentiment around the issue they are tasked with considering.
The importance of getting the necessary documents, such as exhibits and plans, prepared and submitted to the public body, i.e. the Village Clerk or Secretary to the Zoning Board, well in advance of the hearing date is also vitally important. It will allow the Clerk or Secretary of the Board to ensure that these documents are readily available for display and review by the public during the hearing.
Finally,
applicants should have their presentations prepared in advance. Virtual meetings tend to take longer than in
person meetings, technical issues inevitably arise, participants talk over each
other, and it is easy for a record to get muddled. Prepared presentations will allow an
applicant to stay on track and not inadvertently miss any of the presentation’s
key points or standards of law. It will
allow an applicant to make sure the record is complete so that the Board has
all the information they need to render a decision. A clear and complete record will also prove
helpful to the applicant should an appeal be necessary. The Statute of Limitations for an Article 78
petition challenging a Board’s decision, regardless of how the meeting was conducted,
is 30 days and failure to comply is fatal to any challenge regardless of the
merits. Governor Cuomo’s Executive Order
202.8 and subsequent orders have tolled this Statute. So, although a municipal board may conduct
virtual hearings and render decisions, currently an aggrieved applicant has a
longer window to appeal.
[1]. Governor Cuomo’s Executive Order No. 202.1 suspends this requirement of the Open Meetings Law, to allow a public body to hold meetings and hearings without allowing the public to be physically present at the meeting. The order also authorizes public bodies to meet remotely by conference call or similar service. Once the Executive Order expires, public notice of a virtual hearing will have to include the locations from which the board members will be participating and state that the public has the right to attend the meeting at any of the meeting locations.