Event cancellations have been proliferating with the onset of COVID-19 in the United States, and people are increasingly being requested or required to work remotely. Members of the United States Congress have even proposed shuttering the doors of the U.S. Capitol in response to the virus. According to reports, this idea was immediately shot down by House Speaker Nancy Pelosi (D-Calif.), who remarked that she and her colleagues are “the captains of the ship . . . the last to leave.” Notwithstanding such assurances, the COVID-19 pandemic presents questions about the safest ways to conduct public business in accordance with the law.
In Rhode Island, Governor Raimondo has issued Executive Order 20-05, relieving public bodies from certain restrictions contained in the Open Meetings Act, R.I.G.L. Chapter 42-46, which otherwise prohibit Rhode Island public bodies from meeting remotely. Similar measures have been taken by Governor Baker in Massachusetts. The Rhode Island Open Meetings Act does not apply to Rhode Island’s judicial branch, but the term “public body” is otherwise defined expansively to include any department, agency, commission, committee, board, council, bureau, or authority, or any subdivision thereof, of state or municipal government” within the State. See R.I.G.L. §§ 42-46-2(5) and 42-46-5. The Act applies as equally to zoning, planning, or school boards in Rhode Island’s localities as it does to the board meetings of state-level agencies and sub-agencies.
Underlying Rhode Island’s Open Meetings law is the principle that maintaining a democratic society requires public business to be “performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.” R.I.G.L. § 42-46-3. Under ordinary circumstances, the law almost always requires that meetings of Rhode Island public bodies take place in a physical location with all participating members present, and the public must be allowed to attend any such meetings that are held. However, Executive Order 20-05 permits Rhode Island public bodies to use telephonic and electronic communication to hold public meetings through April 15, 2020, so long as the public meeting is for an “essential purpose” and only if the public body makes provisions to ensure public access to the meeting for members of the public through “adequate, alternative means.”
The Executive Order defines “essential purpose” to mean something that is either necessary for continued government operations or to ensure compliance with statutory or regulatory deadlines. “Adequate alternative means” of public access include measures that provide transparency and permit timely and effective public access to the deliberations of the public body, including technologies that enable the public to clearly follow the proceedings of the public body while they are occurring, such as telephone, internet, or satellite enabled audio or video conferencing. If a public body is specifically required by state or local law to allow participation by ordinary members of the public in the public meeting, then the means of public access must also provide for such participation. In the event that a public body is unable to provide alternative means of access as provided in Executive Order 20-05, then, under certain limited circumstances, the public body may instead post a complete transcript, recording, or other comprehensive record of the proceeding on its website, as soon as practicable. In addition, any alternative means of access used by a public body pursuant to the Executive Order must be provided to the public without subscription, toll, or similar charge.
Executive Order 20-05 is available online here. As the COVID-19 situation persists, Rhode Island public bodies wishing to hold a remote meeting should ensure that their plans are compliant with Executive Order 20-05. If you are a member of a public body in Rhode Island with questions about how the COVID-19 situation may affect you, the attorneys at Adler Pollock & Sheehan are here to help.