Virus concerns lead to ‘public’ meetings without the public
JEFFERSON CITY, Mo. — First, Oklahoma lawmakers excluded the public from the Capitol because of coronavirus concerns.
Then with the public gone, lawmakers made an emergency change to the state's open-meetings law to let all governmental entities meet via video or teleconference, so long as people can watch or listen remotely.
Across the U.S., numerous governors, lawmakers, mayors and county officials have made similar decisions to keep the public away from public meetings — all for the sake of public health. Ironically, the sudden policy shift has played out during the annual observation of “Sunshine Week,” a seven-day period intended to highlight the importance of open-government policies.
“Public participation in our democracy is really fundamental to the health of our democracy," said David Snyder, executive director of the First Amendment Coalition, a Californiabased nonprofit that promotes government transparency.
"I think government agencies need to be very careful not to unduly restrict the public’s ability to see what government is doing and, maybe more importantly, to participate in what the government’s doing,” he said.
On Friday, 132 state and national groups backing open-government policies released a joint statement urging officials at all levels of government to “not retrench” from their duties for public involvement because of the coronavirus.
“Government bodies should not opportunistically take advantage of the public’s inability to attend large gatherings to make critical decisions affecting the public’s interest if those decisions can reasonably be postponed,” the statement said.
All U.S. states require open government meetings. Some mandate that a majority of government officials be physically present to meet. Others already allow officials to meet by video or phone, with accommodations for the public to watch or listen from a designated room.
Those mandates for in-person access have been suspended or ignored as an increasing number of governments have instructed people to stay home and avoid public gatherings to help prevent the spread of the virus that causes the COVID-19 disease.
The move toward seclusion
has posed some practical and technological challenges.
When the Oklahoma Senate passed a bill this week authorizing public bodies to hold teleconference or video meetings through March 1, 2021, open-government advocates couldn't enter the closed Capitol to voice their concerns about the duration of the emergency rules.
Andy Moore, executive director of Freedom of Information Oklahoma, had been watching a live stream of the legislative debate on his computer. He posted his objections on social media. A House member then got in touch with him via text, and the House passed a new version that shortened the remote meeting policy until Nov. 15.
It worked out OK, Moore said, but “anything that kind of clamps down on the flow of information makes it more difficult for the public to stay involved.”
Legislators in Maine and Tennessee also excluded the public from their buildings. South Carolina lawmakers asked lobbyists and visitors to stay away.
The Pennsylvania House and Senate each voted to change their rules this past week to allow members to participate and vote remotely. And New Jersey Gov. Phil Murphy, a Democrat, signed a bill Thursday letting the Legislature meet remotely using technology.
Some open-government advocates worry that it may become harder for the remote-viewing public to interact with elected officials or fully understand what's going on.
“Video conference meetings are great, but there’s really no substitute for physical presence," Snyder said.
In Rhode Island, technical glitches frustrated some people trying to watch the first significant state meeting to be live-streamed after Democratic Gov. Gina Raimondo loosened the state's public meetings law. Those following the Board of Elections via the agency's Facebook page complained that the feed froze.
The Rhode Island chapters of Common Cause and the American Civil Liberties Union said Friday that governmental bodies meeting virtually should be required to pause their proceedings if the video or audio stream is interrupted. They also said all documents discussed should be shared online in advance of the meeting.
In Waterville, Maine, the city solicitor warned Thursday that a new panel formed to address the coronavirus had been illegally meeting in secret and making decisions, including to suspend the city's plastic bag ban. Sigmund Schutz, a lawyer for MaineToday Media, told the state attorney general’s office that urgent guidance is needed for compliance with the Freedom of Access Act.
Restrictions on public meetings have been implemented without resistance in some states. But Republicans in Michigan objected to actions by Democratic Gov. Gretchen Whitmer. Her order temporarily allows public bodies to conduct their meetings electronically, by phone or video conference, as long as they allow public access and participation.
“Older Michiganders are most at risk during these times. They are also the least likely to have the technology necessary to access public meetings electronically,” Senate Majority Leader Mike Shirkey said. “In a time of crisis, citizens should have more access to their elected officials, not less.”
Critics said Shirkey's comments were hypocritical. Michigan is one of two states that wholly exempt both legislators and the governor's office from disclosing communications and other information to the public.
Arizona Attorney General Mark Brnovich, a Republican, published a legal opinion saying public meetings could be conducted remotely as long as there was plenty of notice and a means for the public to observe. He suggested that public bodies provide technical support for people who have difficulty dialing in to a phone conference or watching a video conference.
“Transparency is the core of legality,” Brnovich wrote. “Throughout any circumstance, the government must remain accountable to the people.”
Daniel Bevarly, executive director of the National Freedom of Information Coalition, said he understands the need to restrict access to meetings during the coronavirus pandemic. If governmental bodies continue to live-stream their meetings even after re-opening their doors, the current crisis ultimately could lead to longterm benefits, he said.
“This is an opportunity for us to re-examine this whole public engagement in a digital world," Bevarly said.