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Update to Open Meetings Act Implications of COVID-19

As we previously reported here, on March 16th, 2020, Governor Gina M. Raimondo issued Executive Order 20-05, temporarily suspending certain portions of Rhode Island’s Open Meetings Act that prohibit public bodies from meeting remotely. On April 15th, Governor Raimondo issued Executive Order 20-25, which supersedes and updates Executive Order 20-05. The new executive order extends the relief granted to Rhode Island public bodies in Executive Order 20-05, permitting them to continue meeting remotely until at least May 15th, 2020. However, there are several important differences in the new executive order and interested parties should take note.

First, the new Executive Order 20-25 clarifies that a Rhode Island public body is permitted to meet remotely for any public meeting that it wishes to conduct. The previous executive order permitted public bodies to meet remotely only if the meeting was for an “essential purpose.” That requirement has now been removed. Although the previous executive order did contain a definition for “essential purpose,” public bodies likely found the definition unclear. Furthermore, as the Trump Administration has pointed out, Rhode Island is in the tenuous position of sitting geographically between “two incredible hot spots” for coronavirus (Boston and New York). Removal of the “essential purpose” requirement may reflect a recognition that although there is no clear end in sight for the current public health emergency, ordinary public business should not be inhibited as a result.

Second, under Executive Order 20-25, Rhode Island public bodies are no longer permitted to claim that circumstances like economic hardship or technical difficulty make the public body unable to provide “adequate alternative means” of public access. As we previously reported, “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. The new executive order therefore strengthens the “adequate alternative means” requirement, making it absolute for any public body that wishes to meet remotely. This likely reflects confidence that affordable remote conferencing solutions are widely available to municipalities and other State agencies subject to the Open Meetings Act. In fact, the order points out that guidance on best practices for conducting meetings remotely can be found online at the website for the Rhode Island Department of Administration’s Division of Information Technology. That guidance is available here.

Third, although it is difficult to imagine a public body convening in person in our current environment, it is worth pointing out that neither Executive Order 20-05 nor Executive Order 20-25 have prohibited in-person meetings of public bodies. With that said, the new Executive Order 20-25 requires that if a public body does meet in person, it must nevertheless provide “adequate alternative means” of public access. Thus, the new executive order makes “adequate alternative means” of public access a requirement for all public meetings under Rhode Island’s Open Meetings Act. This new requirement under Executive Order 20-25 was likely included to reinforce public health priorities and it should provide public bodies a disincentive to meeting in person if there had been some perceived benefit in doing so.

Executive Order 20-25 remains in effect through May 15th, 2020 and is available online here. As the COVID-19 situation persists, Rhode Island public bodies wishing to hold any public meeting should continue to ensure that their plans are compliant with all applicable laws, including Executive Order 20-25. If you are a member of a public body in Rhode Island or another interested party, do not hesitate to contact us at Adler Pollock & Sheehan for legal assistance.

 

About The Author

Matthew E. Waters

Matt is a member of the firm’s Public Finance and Business & Corporate Law Groups. He regularly represents LPs in private… Read More

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