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Fred W. Thiele Jr.
When the pandemic pushed public meetings onto virtual platforms, mostly involving the now-ubiquitous Zoom app, something remarkable happened: In most cases, more people “attended” meetings to watch and participate.
Lawmakers in Albany have noticed and now are debating whether virtual access to public meetings should be protected by the state’s Open Meetings Law.
State Assemblyman Fred W. Thiele Jr. of Sag Harbor spoke recently — via Zoom, appropriately — about the conversation in Albany that could lead him to introduce legislation to allow technology to forever change the notion of “open meetings” for both officials and attendees.
Q: The pandemic really did change the way people interacted with government, didn’t it?
Yeah. In a very basic way. And, you know, the idea of virtual meetings or remote participation in meetings was something that really was not even on the radar screen, certainly on the local government level.
The state Open Meetings Law had a very limited and very narrow exception for video conferencing, teleconferencing, which was adopted 21 years ago — largely not to deal with local government. If you look at the bill memo, it was focused on the New York Power Authority. And the fact that their meetings were out, like, at Niagara Falls, and they have these 45-minute meetings, and people who were on the board would have to go across the state to go to these meetings.
So when you’re looking at that bill 20 years, 20-plus years ago, it was designed for a really narrow purpose.
Q: And that was for members — members of the boards — to actually video conference in and participate in the meetings.
New York’s a large state … we’ll let people participate from different parts of the state. When you look at the video conference provisions, it says if somebody is not at the main meeting site, they have to be in a location where they allow the public to be. So the idea was that I’m on the power authority, and I’m in New York City, I could go to 270 Broadway, which is a government building, a state building, and participate, and the public could come there, too.
It wasn’t contemplating a board member being in their living room to participate in a zoning board meeting.
So the pandemic, the executive order, basically allowed virtual meetings, remote meetings, to occur and for people … to be able to participate from anywhere.
Q: So you’re considering legislation to address this issue, moving forward, now that we’ve seen that virtual meetings can actually enhance public participation. Maybe we need to change the state Open Meetings Law to address that and to encourage it to continue. Is that true?
Yeah, I think that there were a lot of positive feelings about virtual meetings and remote participation that happened during the pandemic. Like everything, it’s a balance, and there are countervailing issues that come to life.
I think that most people would say that, for the most part, virtual meetings, remote meetings, enhanced public participation — just as you said.
… More people were watching what local governments were doing and what local boards were doing, but one of the key parts of what the Open Meetings Law is all about is also transparency and enhancing the quality of the public’s interaction also.
And if people have board members who are participating remotely, there’s no opportunity to read their body language. There’s no possibility of confronting them either before or after the meeting. Reporters don’t necessarily get to ask them a question before or after the meeting.
So, on the one hand, there’s been a lot of support for this concept because of increasing public participation — but they will also worry about transparency.
And I think that there are also differences in the types of boards and the types of meetings. Elected boards that people will elect that are passing laws, local laws, people want them to be meeting together. And in that process, the legislative process, they want to be able to see them in person.
Q: Maybe we should define terms a little bit here. I think we’re all in agreement that the in-person meetings need to return.
Yup.
Q: The question is whether there should be virtual access to the same meetings at the same time — it doesn’t have to be one or the other. It can be both. Is that it?
I think there are two parts to this, as you said. One relates to the remote or virtual participation of the public body and what can those members do. And then there’s the public’s ability to be able to access the meeting, not just in person but also virtually or remotely.
And I would agree that I think there is much greater consensus that the laws should expressly state — which it doesn’t now, it’s kind of silent — that allowing the public as many opportunities in different ways to be able to access public meetings is a good thing. So allowing the public to participate by Zoom or other video conference service, I think there’s general agreement out there that allowing the public to do that is a good thing.
The bigger question, I think, is what about boards?
Q: As far as the members of a board participating in a meeting virtually?
Yeah. And I think that’s where we get into the transparency issues. You get a controversial issue, or there’s something that’s really controversial — having five board members who are participating remotely who control the mute button raises some issues, I think, as far as transparency.
… And then, as I was saying, there are different kinds of meetings. You know, you have public work sessions or general meetings, where people have public comments, that’s one form of meeting. But when you have public hearings, especially like a ZBA, which is quasi-judicial and everything’s on the record, and everything is subject to potential litigation. I know a lot of lawyers have reservations about applicants participating remotely.
So, there’s a bunch of issues here, but they really sat on the two things that you say, and that is what should be the rules for the public body and government’s side of this versus the public’s participation in it.
And, as I said, I think the easier part of the equation is, the public should be able to participate remotely. The technology is there — the law should catch up to it. And the law should address it.
Q: It’s not just about viewing the meeting. You should be able to have some ability to connect.
Actually participate. I mean, if in the in-person meeting, it’s at the site, there’s a public portion, or there’s a public hearing, allowing people to be able to participate in that meeting, not just observe it, but also be able to participate in it. I’ve talked not just with local governments about this but also a lot of the good government groups, and, again, their focus is not so much on letting the public participate. And everybody seems to like that. It’s how much remote and virtual activity are you going to allow government officials to be able to do?
I mean, I would think at a minimum, you might want to be sure that you, at the in-person location, you’ve got a quorum there. And maybe once you have a quorum, maybe you have the ability then to allow some remote and virtual participation of elected officials also. That’s one way to go with it.
… One that you see in our area all the time, from the Shinnecock Canal east, two-thirds of all the houses, somebody has a house someplace else — I hesitate to call them second homes anymore, but that’s what we traditionally call them. And I know in the village of Sag Harbor, trying to get somebody to be on the planning board or zoning board, it’s, like, “We live here, we vote here. We’d love to do it, but we’re in New York City on Tuesday and Wednesday, so we can’t participate.”
So no community has the kind of seasonal population that we have. You would expand the pool of people that might be able to participate.
And I’ve also had colleagues of mine in the Assembly say, you’ve got women with young children, maybe they’re single moms, or they just, they have young children, they can’t get over to town hall or the village hall, and you would open that up. So there’s some feeling that if you allow members some virtual participation on some level, you can expand the pool of people who might be able to participate.
So, and that’s really why we want to have public hearings on this because there are some countervailing forces out there. You know, we want to find a balance where we maximize public participation without hindering or having an adverse impact on government transparency.
You don’t want your boards and your government officials to be meeting virtually all the time, where they’re not facing the public, are not facing the media, because of the technology.
I think there are actually two committees that have jurisdiction over this. One is my committee, the Local Governments Committee, and I do local governments. And there’s an Assembly Government Operations Committee, which is state government. The Open Meetings Law affects both state and local.
So, we pretty much agreed that, number one, one needs to catch up to technology, which it hasn’t. And there are a lot of issues, and we need hearings and we need to get the broadest possible input from as many stakeholders as possible before we draft legislation.
The other thing I should point out is that there’s already, like, somewhere between … it’s probably about 10 bills that have been put in already on this subject.
Q: So it’s an active conversation in Albany.
It’s an active conversation. The governor’s ending of the emergency was rather abrupt. Basically, the order that allowed virtual meetings and video conference, the governor made the announcement and, 48 hours later, it was over. … There was a lot of discussion about what the existing law actually did permit. And so that flustered the discussion. But even before the emergency ended, I’d say in the last couple of months, I was already hearing from local government officials who were pretty happy with being able to use video conferencing and wanted to see the law change.
And, of course, in Albany, it doesn’t change that fast. So, I mean, we’re going to have hearings in the fall. It’s something that I think will be ripe for action in 2022.
Q: Isn’t it something how a crisis can spark a re-examination of something so fundamental as what a public meeting is and how it should be conducted?
Well, I mean, listen, I’ll be honest with you, before March 2020, I never heard of Zoom, let alone ever had used it. And I would say most of my colleagues were in the same boat. I’d say my only regret is that I didn’t buy Zoom stock in October 2019.
