The bill extends previous modifications to the Open Meetings law and permits any public body to hold meetings remotely without in-person access as long as the body records and release the audio or video recording to the public.

The bill allows remote public meetings to continue until the Governor terminates the COVID-19 state emergency.

On January 15, Hochul issued an executive order extending the State Disaster emergency, and thus the remote meeting authorization, until February 14, 2022.

The authorization allows government bodies to hold meetings remotely or in-person as long as CDC and New York State Department of Health guidance is followed.

The “Making Documents Available Prior to Open Meetings” law makes documents to be discussed at open meetings available to the public at least 24 hours in advance of the meeting.

The Open Meetings Law is intended to empower the public through the accessibility of meetings of public bodies. The law requires them to make available to the public relevant documents, such as any proposed rule, regulation, or resolution. However, the current law only requires documents to be made available prior to meetings “as determined by the agency or department.”

This standard has resulted in some government bodies failing to make materials available in advance of meetings, reducing transparency. This new legislation requires any proposed resolution, law, rule, regulation, policy, or amendment to be made available upon request and to be posted to the body’s website at least 24 hours in advance of their discussion at an open meeting, giving the public access to these important documents in advance.

The law allows New Yorkers to virtually participate in local government meetings during the COVID-19 pandemic. The legislation, which was initially implemented by Executive Order during last year’s State of Emergency, allows state and local government meetings that are normally held in person to be held remotely instead, as long as the public has the ability to view or listen to the meeting and as long as the meeting is recorded and later transcribed. Hochul said this statutory change will reduce the need for congregation at public meetings while the Delta variant is prevalent, while ensuring public business can continue.

Politico reports that Empire Center for Public Policy‘s E.M. McMahon said the legislation is “appalling and surprising,” adding “We’re at a time when people go to church, they go to synagogues, they go to ball games, but nobody can go into a room with the Albany Common Council?”

The extension goes until January 15th, 2022 and applies to all local governments as well as state executive agencies.

Hochul said on Tuesday evening that she had “heard from government officials across the state who are concerned about the inability of their constituents to access public meetings virtually,” and that the legislation “extends a privilege that not only helps New Yorkers participate safely in the political process, but also increases New Yorkers’ access to their government by allowing for more options to view public meetings.”

Politico reported several good government advocates said on Wednesday that they had not been consulted on the plan.

Governor Hochul also signed a proclamation extending New York State’s eviction moratorium to January 15th, 2022. The session will address New York’s rent and eviction crisis.

Hochul said Open Meetings Law will be discussed due to amendments she says are needed to make meetings more accessible, safe, and inclusive for those with disabilities.

Hochul also plans to jump start a long overdue decision pertaining to establishing cannabis in the State of New York. She stated she’ll be appointing nominations to start the process to legally produce and distribute cannabis in the state.

Earlier this week, WRFA reported that the city council violated state law when an apparent meeting of the finance committee wasn’t made public; nor was a public notice sent out to announce the meeting was going to take place. The committee meeting apparently took place prior to Monday night’s full council work session, which was open to the public.

The public only learned the finance committee meeting took place after it was acknowledged by finance committee chair Kim Ecklund.

“Finance met earlier to discuss a couple items, one of which I’m going to bring the mayor on to discuss in detail with Ryan – Parks, Recreation, and Conservation Discussion that involves summer staffing and programming,” Ecklund informed the full council during the work session.

Mayor Eddie Sundquist also acknowledged the meeting when updating the full council on a plan to reopen city parks.

“Those were the things we were looking at when we go together with the Parks and with our Public Works departent and with finance, to talk about how do we make sure the parks are fully open this year,” Sundquist told council members.

Based on these statements, WRFA surmised the aforementioned committee meeting did indeed take place.

Following the full work session, we contacted Council President Tony Dolce for confirmation of the meeting, and he explained it did take place. When told that it was likely a violation of NYSOML because it was not conducted in public, he explained it was an impromptu meeting, called by the mayor, and that he didn’t think it was in violation.

“The Mayor called the very brief meeting to update the finance committee before it was discussed to the full council,” Dolce explained. “There was no intent to hide anything. It was purely informational and completely discussed in open session [by the full council]. We did not discuss anything else that was on the official agenda that was submitted and reported on in the meeting. Again no vote or action was taken. It’s no different than if we were meeting in person and he called us in his office before he brought it to the full council and the public.”

Also following the full work session, WRFA sent an email to the city clerk’s office, requesting the minutes of the committee meeting once they were available. The city posts the meeting minutes of all committee meetings that take place, and will also post the minutes verbatim when a conversation or discussion takes place. When verbatim minutes are not provided, the meeting minute still reflect any proposed resolutions that have come forward.

The city responded to WRFA’s request for meeting minutes through assistant corporation counsel Ben Haskins. Haskins said there were not meeting minutes because the same discussion on the same items occurred during the full work session, which was public.

He also said the meeting involving the finance committee was not subject to NYSOML, adding that it was more of an “informational” meeting than an official committee meeting:

“A few hours prior to the public city council work session, the mayor requested a meeting to inform members of the finance committee of updates regarding the re-hiring of a position within the city parks department. The purpose of the request was for informational purposes only so that the mayor could be more help to the public and Council regarding the matter. It is routine and common for Council members to ask the Mayor questions on items prior to meetings. Examples of this include requests for more financial data or a particular type of cost. Rather than be unable to provide this information during the meeting, the Mayor’s office would like a ‘heads up’ to properly address any such concerns with data. This meeting was an example of one where the mayor sought to head off any informational deficiencies. This meeting was not a formal meeting of the finance committee. The members of the Finance Committee had no obligation to attend and at no point was a quorum of the City Council’s membership, the amount required to take official action and to invoke New York’s Open Meetings Law, present in the room.”
– Ben Haskins, in a written response to WRFA

“Informational” or otherwise, WRFA maintains the committee meeting violated NYSOML.

For one, a quorum of the full council is not necessary. NYSOML provides the ground rules for any “public body” and it defines “public body” as, “Any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for a Municipal Corporation (including the city of Jamestown) or committee or subcommittee or other similar body of such public body.”  As a result of this definition, the city finance committee is subject to NYSOL and a quorum of the full council is not necessary, so long as the quorum of the committee itself is present. And according to statements from both the committee chair and mayor, along with the council president, a meeting of the committee did indeed take place.

Second, any gathering of a quorum of a public body (including council committees) for the purpose of conducting public business constitutes a “meeting” subject to NYSOML. Whether or not any action is taken is irrelevant. This was laid out in a 1978 Court of Appeals ruling [Orange Pub v. Newburgh, (1978)], which held that any gathering of a quorum of a public body for the purpose of conducting public business constitutes a “meeting” subject to NYSOML, whether or not there is an intent to take action, and regardless of the manner in which a gathering may be characterized.

Additionally, as Orange Pub. v. Newburgh also points out, whether or not committee members had an obligation to meet is irrelevant. If they gather to conduct city business, regardless of location, time or place, nor because of a sense of obligation or lack thereof, the gathering still qualifies as a meeting subject to NYSOML.

On Monday night, the full city council held a work session that was live-streamed on the city website due to the COVID-19 pandemic preventing the meeting from occurring in person.

During the work session, the council discussed bringing back the City Recreation Coordinator position, but only on a part-time basis. That move will result in the city paying about $20,000 less for that position than it did in 2020. By bringing the position back, it will allow the city to move forward with various events and activities that have been put on hold due to the pandemic. That includes recreational and youth sports leagues, as well as other parks-related activities.

As part of the discussion, it was also noted that the city’s Finance Committee had met earlier in the day. However, that meeting was not open to the public by video and also the public was never notified a meeting would occur. This is an apparent violation of two sections of the New York State Open Meetings Law.

According to section 103 of NYS Open Meetings Law:

“Every meeting of a public body shall be open to the general public, except that an executive session” and;

“A public body that uses videoconferencing to conduct its meetings shall provide an opportunity for the public to attend, listen and observe at any site at which a member participates.”

And according to section 104 of the state Open Meetings Law:

“Public notice of the time and place of every meeting shall be given or electronically transmitted, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto”;

“If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations”; and,

“When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”

WRFA reached out to City Council president Tony Dolce following the meeting, who said that the Finance Committee met at the request of Mayor Eddie Sundquist to discuss bringing back the City Recreation Coordinator position on a part time basis. He also said it was a last minute request from the mayor, so there was no time to publicly post the meeting was going to take place, nor have it be streamed live on the city website.

Dolce also said that any discussion and comments that were made during the nonpublic committee meeting were also reiterated during the publicly broadcast full council meeting. As a result, he said he didn’t view it as a violation of the state open meeting law.

“The Mayor called the very brief meeting to update the finance committee before it was discussed to the full council,” Dolce explained. “There was no intent to hide anything. It was purely informational and completely discussed in open session. We did not discuss anything else that was on the official agenda that was submitted and reported on in the meeting. Again no vote or action was taken. It’s no different than if we were meeting in person and [the mayor] called us in his office before he brought it to the full council and the public.”.

However, the state committee on open government has been clear in various rulings that anytime a public body meets, even if it is just to discuss public business without taking any action, it must be open to the public unless the discussion falls under the category of what is permitted for an executive session.

While the mayor reportedly requested the private committee meeting take place, as the city’s top executive, he is not a member of the city’s legislative body and does not have the legal authority to require the meeting occur. Either Dolce, as council president, or committee chair Kim Ecklund, could have denied the request and cited the state open meetings law as the reason. Either of the two could have also requested the meeting begin at 7 p.m. when the full council work session started, so that it could be live-streamed to the public. The work session could have then started following the conclusion of the “very brief” committee meeting.

WRFA has reached out to the city clerk to request the meeting minutes of the committee meeting be provided. According to Section 106 of the state Open Meetings Law:

“Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session.”

This is the second time the council has violated state open meetings law in less than four months. Last November, The city council also violated the state open meetings law when it held a public hearing on the 2021 city budget, but it was not live streamed.

Under state open meeting law, any member of the public who takes issue with a violation has the right to challenge it under an Article 78 proceeding.

• RELATED: PREVIEW OF CITY COUNCIL’S PUBLIC HEARING

In addition, the council hearing also violated the city’s own rule that prohibits members of the public to attend meetings in person Due to COVID-19.

VIOLATION OF STATE OPEN MEETING LAW

The council’s public hearing on its 2021 budget was held at 6 p.m. on Monday night and was advertised to have a live video stream of the proceedings being available on the city website since it was closed to the public due to COVID-19.

However, the live stream was not working and the public was unable to watch the public hearing as it unfolded.

Mayor Eddie Sundquist’s assistant, Zach Altschuler, is responsible for providing video streams of all city public meetings on the city’s website. WRFA notified Altschuler via social media messenger the stream wasn’t working at 6:07 p.m. and asked if the start of the hearing was delayed. He responded shortly after that he was trying to fix the issue and that the meeting had indeed started. He also indicated that while the live stream was unavailable, it was being recorded and would be uploaded and made available for viewing later in the evening.

WRFA had reached out to Council President Tony Dolce following the meeting. He explained he didn’t want to stop the meeting because some members of the public were in attendance and speaking.

“The Union was giving a presentation and I didn’t feel that it would be appropriate to interrupt him especially since it was being recorded,” Dolce said. He also said the snafu could have been due to the recent power outages from over the weekend.

According to the New York State Committee on Open Government, “the fundamental premise of the State Open Meetings Law is that any person who is interested in the deliberations of a public body may be present to view and listen to such deliberations as they occur.”

Due to COVID-19, Governor Andrew Cuomo has issued executive order that prohibits the public from being able to attend in-person deliberations. However, the State Committee on Open Government states that the public still must be able to view the meeting as it happens.

The State Committee on Open Government recently offered a ruling to this effect:

“In my opinion, if a public body can possibly anticipate that any persons who may wish to attend a meeting governed by the provisions of the Open Meetings Law cannot be safely physically accommodated in the proposed meeting locationpursuant to legal and regulatory restrictions, that public body is required to simulcast to the public, by either video or audio means, the proceedings of the meeting as they are occurring so that all members of the public who wish to “attend” may do so.”
– Shoshanah V. Bewlay
ExecutiveDirector, NYS Committee on Open Government
August 10, 2020

Under state open meeting law, any member of the public who takes issue with a violation has the right to challenge it under an Article 78 proceeding.

However, state law also states that an unintentional failure to fully comply with the provisions in the open meeting law “shall not alone be grounds for invalidating any action taken at a meeting of a public body.” That would likely include the technical difficulties associated with not being able to provide the stream as it happens.

The council was able to eventually get its live video stream working, but not until after the 6 p.m. public hearing had ended and its 6:30 p.m. budget deliberations had started.

CITY VIOLATES RULES ON NOT ALLOWING PUBLIC TO ATTEND

The city council also went against its own rule prohibiting public attendance by allowing some members of the public to attend in person.

Both the public notice for the budget hearing, as well as all other meetings since March, states the meetings are closed to the public and comments are required by 5 p.m. the day before the scheduled meeting/hearing.

Despite its public notice stating Monday night’s meetings would be closed to the public, the council still allowed some members of the city’s collective bargaining units to attend the budget hearing in person and speak on concerns they had with the budget.

Both Mayor Sundquist and Dolce have also informed WRFA and other media outlets that as members of the public, they are prohibited from covering their meetings in person during COVID-19. But both the 6:30 p.m. budget deliberations and the 7:30 p.m. work session showed a member of the Post-Journal newspaper staff in attendance.

Council member Kim Ecklund informed WRFA the newspaper reporter showed up in person once he had learned the live stream was not available and he was permitted to stay for the hearing, as well as the subsequent budget meeting and work session.