House Bill 5269 passed by the General Assembly on April 27th and which is expected to be signed by Governor Lamont as early as April 28th removes the April 30, 2022 sunset date on the legislation passed last spring regarding remote and hybrid public meetings. This will allow towns and cities to continue to follow the same processes and procedures for conducting public meetings that took effect on July 1, 2021. It is important to remember that these provisions are permissive and entirely in-person meetings may still be held under the pre-Covid provisions of the Freedom of Information Act. Although HB 5269 did not make any substantive changes to the existing law regarding hybrid and remote meetings other than making the provisions permanent, there has been enough confusion and misunderstanding of the current requirements that an updated summary may be useful.
As has been the case since the passage of last year’s legislation which replaced Governor Lamont’s executive orders, municipal public agencies are permitted to hold meetings either in-person, entirely remotely, or partially remotely (“hybrid”). If the meeting is remote or hybrid, the electronic technology must allow members of the agency and the public access to meetings through telephonic, video, or other conferencing platforms. Many of these new provisions (not including the WPCA provisions) have been engrafted into the Freedom of Information Act (“FOIA”) and would be enforced by the Freedom of Information Commission.
In-Person Meetings. As noted above, public agencies are allowed to hold their meetings in-person, as was the case prior to the pandemic. The same FOIA requirements and other rules apply to noticing the meeting, posting the agenda, conducting the meeting and posting votes and minutes after the meeting.
A new provision had been added and has been retained which requires public agencies to provide members of the agency (as distinguished from the public) the opportunity to participate by means of electronic equipment. However, the agency is not required to adjourn or postpone the meeting if the member of the agency loses their connection to the meeting or it otherwise becomes degraded or interrupted, unless the presence of such member is required to maintain a quorum. This provision appears to apply to meetings that the agency is otherwise conducting in-person, although it does not appear that the intent was to have remote participation by a member of the agency
convert the meeting into a hybrid meeting, thus triggering the additional requirements.
Advance Notice of Intent to Conduct Hybrid and Remote Meetings. If a public agency intends to conduct a regular meeting either in part or entirely through remote means, the agency must notify its members either in writing or through electronic means of that fact not less than forty-eight (48) hours prior to the meeting. In addition to notifying the members, the agency must also provide such notice (1) at its regular office or place of business, (2) in the office of the clerk or district of the political subdivision in which the agency is located, and (3) on the agency’s website if it has one. The notice must also include instructions for the public on how to attend and provide comment or otherwise participate in the meeting, either in person or by electronic means, as permitted.
Electronic Posting of Agenda for Hybrid and Remote Meetings. Much like the executive orders, current law requires that the public agency post the agenda for the regular meeting or special meeting not less than twenty-four (24) hours prior to the meeting. The locations for posting the agenda are the same three as for the advance of notice of the intention to hold a remote or hybrid meeting. Like the notice, the agenda must also include instructions for the public on how to attend and provide comment or otherwise participate in the meeting, either in person or by electronic means, as permitted.
The current legislation similarly omits any requirement that the agency post all of the materials relevant to the items on the agenda on the website at least twenty-four (24) hours in advance. While there certainly is no harm in doing so, it is no longer a requirement as it had been prior to June 30, 2021.
Access to Remote Meetings for Members of the Public. In the event a regular meeting is being held solely by electronic means, if a member of the public makes a written request to the agency not less than twenty-four (24) hours prior to the meeting, the agency must make available to that member of the public a physical location and the electronic equipment necessary to allow them to attend in real time and the same opportunity to participate and comment, as applicable, if the meeting were held in person. However, the agency is not required to adjourn or postpone the meeting if the member of the public loses their connection to the meeting, or it otherwise becomes degraded or interrupted.
Recording and Retention of Recording of Remote Meetings. In the case of a remote meeting, the agency shall ensure that a recording or transcription of the meeting is made and is posted on the agency’s website within seven (7) days of the meeting. Once posted, it must remain on the website for at least forty-five (45) days. The agency must also retain the recording in its office for the same period of time and allow the public to listen, copy or view it. Municipalities had expressed concern during the pendency of the executive orders that retaining the recordings for an indefinite period of time was burdensome and costly in terms of electronic data storage and for other reasons. While the Office of the Public Records Administrator may have a different retention schedule that could be deemed to apply to these recordings, the FOIA language establishes a relatively short period of time during which the recording must be posted on the agency or town website.
Remote Meetings with a Quorum Located in One Place. In the event a meeting is held as a remote meeting, if a quorum of the members is attending by electronic equipment from the same physical location, they must permit members of the public to attend the meeting in person at that physical location.
Attendance and Votes Taken at Hybrid and Remote Meetings. If any member of a public agency is participating by means of electronic equipment, all votes must be taken by roll call vote – unless the vote is unanimous. The minutes of the meeting must also specify which members were attending in person or by means of electronic equipment.
Good Faith Effort to Identify Speakers. During remote or hybrid meetings, members of the agency and members of the public who testify or otherwise participate “shall make a good faith effort to state such member’s name and title, if applicable, at the outset of each occasion that such member participated orally during an uninterrupted dialogue or series of questions and answers.”
Interruption of Meetings by Technical Issues. If a hybrid or remote meeting is interrupted, disconnected or otherwise becomes unworkable in the chairman’s discretion, the agency may suspend the meeting. Not less than thirty minutes nor more than two hours following the disconnection or termination, the agency may resume the meeting either (1) in person, if a quorum is present, or (2) by electronic means if a quorum is able to restore their connection. If the electronic means is restored, the public may also participate in that manner. If practicable, the agency should post on its website or otherwise inform attendees by electronic transmissions (such as email) of the expected time of resumption or the adjournment or postponement of the meeting. If the agency has an advance plan for such resumption or postponement of the meeting, they may announce that at the beginning of the meeting.
Creates No Greater Rights for the Public to Participate. Although the new law allows members of the public to attend meetings by electronic means in the case of hybrid or remote meetings, it does not create any new or additional requirements that the agency allow members of the public to speak, participate, testify or comment than is otherwise provided by law for those members of the public who may attend a meeting in person.
Disruption by Public Participating Electronically. In the event a person or group of person attends a public meeting electronically and interrupts the proceedings or are otherwise preventing the orderly conduct of business, the agency may terminate such person’s or persons’ electronic access until such time as order is restored. Note that if this occurs, no business which is not on the agenda may be conducted.
Town Meetings. The current law does not explicitly address town meetings and whether remote participation is permitted or required. The general consensus is that the law does not require remote access to town meetings, but it may be provided if the town is able to manage it effectively. In the event a town meeting is conducted by hybrid or remote means, there is a provision by which a moderator of a town meeting being conducted under CGS 7-7 may terminate the attendance of a disruptive or offensive participant. This is the only provision of the bill which explicitly refers to town meetings.