Municipal Practice Group Update
The budget implementer bill (SB 1202) passed by the General Assembly last Thursday and which is expected to be signed by Governor Lamont as early as today enacts into law many of the processes and procedures for conducting public meetings that had been enabled by the various executive orders issued over the past fifteen months. While some of these procedures are the same as those contained in the executive orders, many of them are either new or modified.
First, it is important to note that most of SB 1202’s provisions regarding remote and hybrid (i.e., combined remote and in-person) meetings take effect on July 1, 2021 – the day after the date on which the parallel executive orders expire – but have a sunset date of April 30, 2022. This was the result of compromises made by proponents of the public meeting provisions to get something passed during the regular session. That still failed to happen, and it did not ultimately pass until the ensuing special session. For some reason, however, water pollution control authorities appear to have been given permanent authority to hold hearings electronically for the purpose of setting sewer assessments, establishing sewer connection and usage charges, and ordering property owners to connect.
Under the new provisions, 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 has been added 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 which expire on June 30, SB 1202 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.
One important change from the executive orders is that the new law does NOT require 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 has been for the past year.
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 or Hybrid 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 final language of the bill does not explicitly address town meetings and whether remote participation is permitted or required. The general consensus is that the new law does not require remote access to town meetings, but it may be provided if the town is able to manage it effectively. Also, SB 1202 contains a counterpart provision by which a moderator of a town meeting being conducted under CGS 7-7 may terminate such offenders’ presence. This is the only provision of the bill which explicitly refers to town meetings.
Study Group. The bill directs the Connecticut Advisory Commission on Intergovernmental Relations (ACIR), in conjunction with the Connecticut Association of Municipal Attorneys and the State’s Chief Information Officer to study the feasibility of remote participation in public meetings, including remote voting. The commission is to report back to the General Assembly no later than February 1, 2022 with its recommendations.
Publication of Notices, Etc. SB 1202 greatly expands the number of municipal notices that may be given electronically, as well as by mail or by hand delivery. However, the bill did not continue a municipality’s ability to provide electronic notices on its web site in lieu of any requirement that they be published in a newspaper. Consequently, as of July 1, 2021, any hearing or decision notices that were required to be given by newspaper publication prior to the Governor’s Executive Orders must again be given by newspaper publication.
The new requirements are detailed and may be confusing and are likely to be changed again in less than a year. Please feel free to reach out to any member of our Municipal Group with any questions or concerns.