The State of New York has imposed an emergency restriction on gatherings of 50 or more persons. It has ordered the closure of bars, restaurants, gyms, and other public venues. The Centers for Disease Control is urging Americans to limit even small gatherings: “Events of any size should only be continued if they can be carried out with adherence to guidelines for protecting vulnerable populations, hand hygiene and social distancing. When feasible, organizers could modify events to be virtual.”1 Certain localities are taking more dramatic measures. Municipal officials around New York are evaluating the propriety of postponing the meeting of local officials and decision-making bodies. Cancellations have already taken place. This article will evaluate how to keep the mechanics of local government moving without running afoul of the Open Meetings Law (OML) and other emergency considerations New York municipalities should keep on their radar.
Changes by Executive Order
Acting promptly in response to the quickly advancing viral menace, the State legislature vested Governor Cuomo with new emergency powers and expanded the definition of “disaster” to ensure present circumstances were covered.2 As amended, NY Executive Law now empowers the Governor to issue any directive “necessary to cope with the disaster.”3 The changes expand the range of measure the Governor can take to respond to the crisis, which already included the ability to suspend provisions of any state or local statute that would, in his estimation, delay the government’s response.
OML already permits members of public boards to attend official meetings and to cast votes via video conference, subject to the requirement that notice and availability of access to the remote site be provided for.4 But in an attempt to further facilitate the continuation of municipal business without the need for public gatherings, the Governor used his newly expanded authority to issue an Executive Order providing that:
Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.5
While the emergency order is in effect (until April 11, and in all likelihood to be extended), municipalities can hold meetings that are not physically accessible to the public by conference call or video conference, so long as the public can listen to and/or watch the meeting in real time. This is allowed with the additional requirement that a transcript of the meeting be made available after the meeting. For transcript purposes, Board members and all others speaking at the meeting will need to identify themselves so that the transcript will clearly identify each speaker. Importantly, board “minutes” are not a transcript. Minutes usually take the form of a summary, while a transcript should be everything said at the meeting, nearly verbatim. Municipalities that decide hold public hearings that aren’t open to the public in-person should allow the public to submit comments via writing and email for some reasonable amount of time after the meeting. These comments must be made a part of the public record.
Notice provisions applicable to public meetings and hearings are not relaxed by the order. They are amended in that notices must inform the public that the meeting will not be open to the public and they must include information to allow the public to access the meetings remotely. Stepped-up notice provisions related to meetings called on short notice are likewise still in effect. Courts are weary of meetings scheduled less than one week in advance. However, whether to void a decision made under such circumstances is left to the court’s discretion and will only be done upon good cause shown.6 It is likely that any emergency meetings necessitated by these unprecedented circumstances would be viewed more favorably.
Local officials should also keep in mind that any provisions passed at the local level requiring distinct procedural requirements are not altered by the Executive Order. There are two methods to circumvent local procedural requirements. The first and most straightforward is to merely pass a local law through the ordinary channels to suspend or repeal whatever procedure is not conducive to public health and safety. The other method is through the use of the municipality’s emergency authority under the Executive Law.
Local Authority to Declare a State of Emergency
Whenever there is a statutorily defined disaster, as amended by the recent change to the Executive Law, local municipal chief executives are empowered to declare a state of emergency.7 These last for up to 30 days and may be renewed so long as the emergency continues.8 To enact such a state of emergency, the executive must issue a written proclamation stating the time, length, geographic area, and reason for the state of emergency. Such proclamations need to be “filed within seventy-two hours or as soon thereafter as practicable in the office of the clerk of such municipal corporation, the office of the county clerk, the office of
the secretary of state, and the state office of emergency management within the division of homeland security and emergency services.”9
Once in a state of emergency, or concurrent with the declaration thereof, local executives have a wide range of powers to bring the emergency situation under control.10 One of these powers is the suspension of local laws, ordinances, and regulations that could “prevent, hinder, or delay disaster response.”11 The suspension of public meeting procedural requirements, or the outright cancellation of meetings, could fall into this basket during a disease outbreak if the suspension limits in-person contact or facilitates social distancing. Local emergency orders terminate after five days, upon rescission, or upon the end of the emergency by declaration or expiration.12
Finally, municipalities should keep in mind that the Executive Order has not relaxed default approval provisions of state law. For instance, Village Law § 7-728.8 provides that preliminary or final plat approvals are “deemed granted approval” if the planning board of the village does not act on them within the time periods prescribed therein.13 Local emergency authority does not extend to the tolling of these requirements so municipalities should be diligent in seeking the consent of owners or developers in extending those deadlines. Local emergency orders can be used to toll any such local default approval provisions, but keep in mind that local emergency orders only stay in effect for five days. This would quickly become a bothersome if social distancing recommendations stretch on for many weeks. Thus, repealing any such provisions through the town legislative body might be a more attractive option.
Things are developing rapidly. New Executive Orders or additional guidance from State agencies are altering the way we live our lives and manage our organizations and our communities on a daily basis. If you have any questions or would like advice on drafting or interpretation of local laws or ordinances, reach out to an experienced municipal attorney as soon as possible.
Questions and Updates
Please do not hesitate to contact the Wladis Law Firm if you have any questions about the above information. We will do our best to provide you with updates and will be available to answer questions as circumstances change. We may be reached at 315/445-1700 or by e-mailing Attorney Jennifer Granzow at email@example.com or Attorney Kevin Murphy at firstname.lastname@example.org or by reaching out to your everyday firm contacts.
2 L. 2020, ch. 23 (S.7919).
3 Exec. Law § 29-a(1).
4 N.Y. Pub. Off. Law § 104.
5 E.O. No. 202.1 (Mar. 07, 2020).
6 NYS Tenants Neighbors Coalition v. Nassau Cty. Rent Guidance Bd., 899 N.Y.S.2d 61 (Nassau Cty. Sup. Ct. 2006).
7 Exec. Law § 24.1.
9 Exec. Law § 24.3.
10 Exec. Law § 24.1(a)–(g).
11 Exec. Law § 24.1(g).
12 Exec. Law § 24.2.
Kevin C. Murphy
Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.