On September 24, 2020, the New Jersey Department of Community Affairs issued New Emergency Regulations: Remote Public Meetings Held During a Declared Emergency. These emergency regulations are currently in effect, and have been proposed for permanent adoption. With respect to permanent adoption, the comment period ends on November 18, 2020. Below is a summary of the regulations and how they may impact remote public meetings of local public bodies, particularly remote board of education meetings. The regulations are meant to make remote meetings as practical as possible, while also maximizing the public’s ability to watch and stay engaged with the meeting.
Pursuant to the regulations, in order for local public bodies such as boards of education to hold remote public meetings, there must be a public health emergency (“declared emergency”) pursuant to the Emergency Health Powers Act, or a state of emergency pursuant to the Disaster Control Act. The emergency must prevent the public body from conducting its public business in a manner that is safe to the members of the public present. The COVID-19 pandemic qualifies as a public health emergency.
Under the regulations, if a board of education decides to have an in-person meeting, it has two options available. The board of education must either hold the meeting at a location that has adequate capacity for the members of the public that the board reasonably expects to physically attend the meeting, or hold the meeting with in-person and remote aspects. For example, a board of education may hold an in-person meeting while allowing members of the public to participate and comment remotely.
TECHNOLOGICAL ASPECTS
Remote public meetings may be held by electronic means, including but not limited to, audio-only, audio and video, or live-streaming. The method or platform chosen by the board of education must be one that is “routinely used in academic, business and professional settings, and can be accessed by the public at no cost.” N.J.A.C. 5:39-1.4. Additionally, to ensure public access, there must also be a telephonic line available for the public to dial in and listen to the meeting in case a member of the public does not have internet access. The remote platform chosen by the board of education must also have the ability to host at least fifty (50) people in virtual attendance, while also anticipating how many people the board of education reasonably expects to view and/or participate in the remote meeting. For example, if 200 people are reasonably expected to virtually attend a remote meeting, the platform chosen by the board of education must have the ability to host at least 200 remote members of the public. The electronic platform must also provide the board of education with the ability to regulate the participation of individual members of the public, including the ability to mute the audio of all members of the public in order to regulate public comment and prevent disruptions to the meeting.
While members of the public must be permitted to make public comment either through audio or audio and video means during the meeting, in advance of the remote public meeting, the board of education must also permit members of the public to submit public comments via electronic mail and in written letter form by a reasonable deadline. Public comments submitted in advance of the meeting should be sent to the official responsible for creating the meeting agenda, such as the Board Secretary. Any public comments submitted through electronic mail or written letter prior to the remote public meeting shall be read aloud at the beginning of the meeting.
Pursuant to the regulations, any presentations or documents that may be viewed by or made available to members of the public during an in-person meeting must either be visible during the remote meeting on a video broadcast or made available on the Internet website of the board of education in advance of the meeting. The link for the public to access the documents should be either posted on the meeting notice or in close proximity to where the meeting notice is posted on the website, and in the building where the meeting would otherwise be held. The regulations also provide that local public bodies, including boards of education, should make the meeting link available on or near where the meeting agenda is located.
If a board of education has the need to hold an executive/closed session during a remote public meeting, the board of education must ensure that the audio portion of the remote meeting is turned off. The board of education must also ensure that the video portion of the meeting cannot be accessed by members of the public, and that the video portion is blocked off by a graphic labeled “Executive Session.” As with in-person meetings, the board of education must read into the record the reason(s) for entering into executive/closed session.
NOTICE
Prior to any remote public meetings, the public must receive adequate notice of the meeting. This includes providing clear and concise instructions for making public comment, and where any relevant documents may be found. Adequate notice must also include the time, date, location, and agenda of the meeting, as well as a reference to the electronic platform the remote meeting is using (i.e., Facebook Live, Zoom, Microsoft Teams, etc.). This information shall be placed on the website or webpage of the board of education. In the event the board of education does not have a website, an official social media platform will suffice. If the board of education has no internet presence whatsoever, the electronic notice is not required.
In addition to the required notice for public meetings under the Open Public Meetings Act (“OPMA”), the regulations provide that notice for a remote meeting must also be posted on the door of the main public entrance to the building where the public would routinely attend in-person meetings of the board of education, as well as the door of the handicapped accessible entrance to that building. During a declared emergency a board of education may issue electronic notice, at least 48 hours ahead of the remote meeting, and in lieu of publishing notice in the newspaper under the requirements of OPMA. However, in such an instance, the board of education must limit the public business discussed to matters necessary for the continuing operation of the board and which relate to the emergency declaration connected with the declared emergency, or such business that requires a decision by the board of education due to imminent time constraints.
If a board of education expects to conduct remote public meetings for a series of regularly-scheduled meetings advertised on its annual notice, the annual meeting notice should be revised to contain clear and concise instructions for accessing those remote public meetings, the means for making public comment, and where relevant documents, if any, will be made available.
STATEMENT AT COMMENCEMENT OF MEETING
The person presiding over the meeting shall announce publicly and ensure the minutes reflect the following:
· That adequate and electronic notice of the meeting was provided, specifying the time, place and manner in which notice was provided; or
· If only electronic notice was provided, that the discussion will be limited to matters necessary for the continuing operation of the board of education and which relate to the applicable emergency declaration
This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact W. Connor Kimmel or Anthony P. Sciarrillo of Sciarrillo Cornell at edlawgroup@sciarrillolaw.com.