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HomeMy WebLinkAbout2021-10 -In-Depth-Sunshine-Law-Requirements-for-Multi-Site-and-Remote-Meetings-Effective-January-1-2022-1 In-Depth SunshineLawRequirementsfor Multi-site and Remote Meetings,EffectiveJanuary1, 2022 (October 2021) Act 220, Session Laws of Hawaii 2021, amendedthe SunshineLaw to allow public meetings to be remotely conductedonline,effectiveJanuary 1, 2022. This summary of the new multi-siteandremote meeting provisions explains the reasons why the SunshineLaw was amendedto allow for remote meetings and describes the different meetingoptions now availableunderthe SunshineLaw. Before theCOVID-19 pandemic,the SunshineLaw allowedboards to use interactive conferencetechnology (ICT) to connectmultiple public meetingsites where board members wouldbephysically present. ICT was definedin section 92-2, Hawaii RevisedStatutes (HRS), as “any form of audioor audioandvisual conference technology,includingteleconference,videoconference,andvoiceover internetprotocol, that facilitates interaction between thepublic andboard members.” While meetings couldbe conductedusingICT, includingan audio-only connection, board members were still requiredto be present in person at oneof the noticedpublic meeting sites, with a limited exception for disabled members. The pandemic,however, forced theimplementation of emergency measures that suspendedtherequirementforboard members to meet in person at public meetingsites. These measures allowed meetings usingICT in which board members andthepublic could participate remotely online fromtheirprivate homes, businesses,orother locations (remote meetings) andthus enabledboards to conductnecessary business while protecting participants’ health andsafety andexpandingpublic access to meetings throughouttheState. Recognizingthatremote meetings hadproved viable andpopular for SunshineLaw boards, the 2021 Legislaturepassed SenateBill 1034, S.D. 1, H.D. 2, C.D.1, which was enactedas Act 220 andcan be foundon OIP’s Legislation page. Act 220 slightly amendedtheICT definition 1 and created a new section in the SunshineLaw that allows boards to holdremote meetings for which boardmembers are not required to attend at an in-person meetingsite, although the boardmust still provide an in-person site for members of the public whohavenodesireor ability to participate usingICT. Act 220 also established new requirements for remote meetings anda new noticerequirementfor all meetings subject to the SunshineLaw. As amended, theSunshineLaw’s requirements for holding meetings using ICT are summarized below. I. ThreeOptions to Hold Public Meetings 1 As amended by Act 220, Section 92-2, HRS, defines ICT as “any form of audio and visual conference technology, or audio conference technology where permitted under this part, including teleconference, videoconference, and voice over internet protocol, that facilitates interaction between the public and board members.” The effect is to generally require some level of board member visibility for remote meetings. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 1 The SunshineLaw now provides boards with three distinct options to conduct public meetings: (1) a meeting in person at one site, which is thetraditional method; (2) a meeting in person at multiple sites connected via ICT, without any requirementto provide remote access, as previously allowed;or (3) a new type of “remote” meeting using ICT whereboard members andthe public may participate either remotely, or from an in-person site listed on the notice. In recognition of thedigital divide, which may affect members of boards and the general public, all three options require at least one in-person meeting site. Option one is how Sunshine Law meetings have traditionally been held, at one physical location where all members of the board and the public attend in person. Boards withoutthestaffing,equipment,or technical ability to conductremote meetings can continuetouse this in-person meeting option, since there is no requirementfor boards to provide ICT connectivity. Option two was also an available Sunshine Law meeting option before the amendments effective January 1, 2022, were passed, under which a public meeting may be held at multiple in-person meeting sites connected by ICT. Members of the board andthe public can chooseto attend any of the in -person public meetingsites listed on the meetingnotice. The sites are connectedto each other by ICT, thus allowingpeoplefrom various islands or parts thereof to simultaneously participate in the same in-person meeting being heldat multiplemeeting sites. Option two continues toallow whathas been thepreferred meeting practice of some boards to connect members or constituents on differentislands (e.g., Maui County Council,to connect Maui,Molokai, andLanai), or widely separated locations on the same island (e.g., Hawaii County Council,to connect Hilo and Kona). Option two does not require a board to provide a way for the public to attend and testify remotely from a private location of the public’s choice (e.g., theirown homes or businesses),although it also wouldnot prevent a board from acceptingtelephonetestimony or something similar. Option two does requireall board members to attend in person at oneof the meeting sites, unless they are disabledandare thus allowedto participate remotely. Option three is a newly created section of the Sunshine Law allowing remote online meetings, similarto whatboards did duringtheCOVID-19pandemic as authorized by theGovernor’s emergency orders, but with enforceablepublic access standards appropriate for remote meetings held in normal,non-emergency circumstances. For a remote meeting, all board members as well as the public can participate via ICT from their private homes, offices, or other locations. They also havethe option to attend from the in-person public meetingsite connectedto the remote meeting that theboard must provide, which accommodates any member of thepublic or the board whoprefer to attend at a physical location ratherthan using theirown remote connection. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 2 Options two andthree both rely on an ICT connection toconnectmembers and the public whoarenot all in thesame physical location. The primary difference between these options is that option two is an entirely in-person meeting, even though it has more than one meeting site, andtherefore this option does not require the board to also provide a way for the public to remotely view andtestify at the meeting. Under option two, board members and the public must go to one of the in-person meeting sites listed on the noticeto attend (although theboardis allowed, but notrequired, to offerunofficial “additional” sites or accept telephonetestimony to accommodate members of the public). Only under option three would members of the board and the public have the right to remotely participate in a meeting from private locations. Underboth option s two andthree, theICT beingusedmustallow for interaction amongall members of the board andthe public whoareparticipatingin the meeting. If the ICT connection is interruptedbetween themultiplein-person meetingsites under option two, or duringaremote meeting heldunderoption three,the meetingmay haveto be terminated under Act 220’s provisions,to be further discussedbelow. In contrast, if the ICT connection is interruptedorlost only to “additional locations” described below, the meetingcan still continue. II. Additional Unofficial Meeting Locations (formerly known as “courtesy” sites) Besides the official in -person meetingsites that couldbe set upunderoption one or two, and therequired physical location connectedto theremote meetingunderoption three, the SunshineLaw allows boards to set upadditional unofficial in-person sites. Prior to the amendments addingtheremote meeting option,the SunshineLaw didnot explicitly recognizethat option.However, OIP interpreted theformer languageof section 92-3.5, HRS,includingits requirementthat a meeting terminate if connection is lost to onesite, to only apply to sites that are noticedas official meetingsites whereboard members may be present andnot to additional sites made availableto the public with the understandingthatnoboard member wouldbepresent. OIP previously referred to these unofficial additional sites as “courtesy” sites. OIP’s interpretation is now codified in the Sunshine Law’s amendment to expressly allow boards the option to set up unofficial “additional locations”forthe public’s convenience,whereboard members will not be present andthere is norequirementthat the formal meetingbe recessed or terminated if the ICT connection fails tothese additional locations. It must be emphasizedthat providing an additional location does not change the board’s obligation underany of the three options to provide at least one in- person meeting site open to thepublic that must stay connectedto themeeting. Additional locations can beusedto help members of thepublic watch or testify at a meeting withouthavingto either use theirown connection toa remote meeting or travel to thenearest official meetingsite, withoutincreasingtheboards’ risk of havingto terminate meetings early dueto connectivity problems. When a board provides an additional location for a meeting, its notice must inform the public that attendees at that site might miss out on part of the meeting in the event of a lost connection. Despite therisk of ICT connection totheofficial meetingbeinglost, for some members of In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 3 the public that risk is offset by the benefits andconvenienceof beingableto participate from an additional location nearerto theirhome or work. Note that a board is not required to provide additional locations, andthe fact that a board previously has had additional locations, or has useda particular place as an additional location,does not create any obligation forthe board to include those locations for futuremeetings. III. Requirements to Hold Remote Meetings A. Notice requirements The noticeof a remote meeting must tell the public how to watch and hear the live remote meeting, typically via a link to a remote meetingplatform, and how to provide remote oral testimony through an internetlink,atelephoneconference,or other means. The notice must also list at least one physical location connected to the remote meeting, wheremembers of thepublic can go in person to participate. A board holdingaremote meetingunderoption three is not requiredto allow members of the public to join board members in person at nonpublic locations whereboardmembers are physically present,such as their homes or private offices, so there is no requirement for the notice to identify the nonpublic locations where board members will be. The notice may also list additional locations open for public participation andif so, must specify whether the meeting will continue without the additional location if the ICT connection is lost or if the meeting will be automatically recessed to restore communication to the additional location. B. Board member visibility and quorum requirements As a general rule, the remote meeting platforms must allow audiovisual interaction amongboard members andmembers of the public attendingthemeeting,but there are some exceptions to this general rule. To accommodate thechallenges someboard members may have in remainingon-camera throughoutan onlinemeeting, the law only requires a quorum of board members to be visible to the public during the public portion of remote meetings. All board members present at the meeting must have at least an audio connection. In contrast to the visibility requirementfor board members, there is norequirementfor thepublic or other non -boardparticipants to be visibleduringonlinemeetings,thoughtheboardmust allow thepublic to provide oral testimony duringthemeeting,either through thesame meetingplatform beingusedby the board members or some othermeans such as a telephoneline ora more limited online connection controlled by the meeting host. Just as a board member’s brief absencefrom the room duringameeting, such as to take a five-minuterestroom break, does not immediately requirea board to terminate a meeting dueto loss of quorum, a member’s brief disappearance from camera view does not immediately trigger therequirementto suspendthe remote meeting dueto not havingaquorumof members visible. If, however, a board member whois neededto In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 4 meet the quorumrequirementwill beoff-camera for an extendedperiod of time or during a vote, theboard should call fora recess until a quorum of members are present and visible. Note that the visibility requirementfor board members applies only to the public portion of a meeting. During an executive session closed to the public, board members can participate via telephone or audio only without being visible online. Becauseparticipants may not be visibleduring an online executivesession, and to preserve theexecutivenatureof any portion of a meetingclosed to thepublic, the presiding officer must publicly state the names and titles of all authorized participants, who in turn must confirm that no unauthorized person can hear them eitherin person or via anotheraudioor audiovisual connection. Additionally,if the remote meeting platform allows doingso, the meeting host must confirm that no unauthorized person has access to the executive meeting. “Authorized participants” wouldbeanyoneproperly includedin theclosedportion of the meeting, which generally means board members, staff members necessary to run the meeting (e.g., technical orproduction staff), andin some cases, third parties whosepresenceis necessary to the closed meeting(e.g., applicant,witness,or attorney). C. Procedures for the public portion of remote meetings At thestart of a remote meeting, the presiding officer must announce the names of the participating members and each board member participatingfrom a nonpublic location must state who else is with themember. Votes must generally be taken by roll call, so that it is clear how each member voted, but when thevote is unanimous theboard is notrequired to take a roll call vote. Thus,a board can first ask if any members object or wish to abstain from voting,and only proceed to call the roll if there is at least oneobjection or abstention. A board is generally required to record a remote meeting andmake the recordingelectronically availableto thepublic as soon as practicable after themeeting. This requirement only applies “when practicable,” and the recordingis only required to be kept online until themeeting minutes areposted on theboard’s website. Because it is usually easy to record an onlinemeetingandpost it on a board’s website, the general requirementto do so gives peoplewhowere unableto attend themeeting the ability to watch at a more convenient time, butstill permits a board to skip recordingan onlinemeeting when doingso presents a more significantchallenge. A board could also take advantage of the recording by using it as its recorded minutes in combination with the written summary required for recorded minutes. If a board opts for traditional written minutes instead,it can remove andeven delete therecordingonce its written minutes are posted. For further guidance on minutes,see OIP’s “Quick Review: SunshineLaw Requirements forPublic Meeting Minutes” on our Trainingpage at oip.hawaii.gov. IV. Requirements for Both Remote and Multi-Site Meetings Using ICT In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 5 A. Procedures if ICT connection is interrupted or lost If the board’s audio-visual connection is lost duringthepublic portion of a remote meeting or duringa multi-sitemeeting, the Sunshine Law requires the meeting to automatically recess for up to 30 minutes whiletheboard attempts to restore the connection. This requirementapplies for all official meetingsites andthe remote connection(s)providedas part of a remote meeting, but it does not apply when the remote connection is workingproperly and a member of the public has lost internet connectivity or is otherwiseunabletoaccess the remote connection duetoissues on that person’s end. The board may reconvene with audio-only communication if the visual link cannotbe restored, provided that the board has provided reasonable notice to the public as to how to access the reconvenedmeetingafter an interruption. For remote meetings only,the law specifically requires speakers to state their names before speaking, if the meeting has been reconvenedwith audio-only communication. Within 15minutes of establishingaudio-only communication, copies of nonconfidential visual aids thatare requiredby or broughtto the meetingby board members or as part of a scheduledpresentation mustbe made availableby postingon the internetor other means to all meetingparticipants (includingthoseparticipating remotely). If these requirements are not met, agendaitems with unavailablevisual aids cannotbe acted upon at the reconvenedmeeting. If the meeting cannot be reconvened within thirty minutes after interruption tocommunication,andreasonable notice has not been provided to the public of how themeeting will be continued to anotherdate or time, the meeting is automatically terminated. OIP recommends that boards prepare in advancefor the possibility of technical difficulties and has providedtips in the next section. B. Continuation of a Meeting if ICT Connection is Not Timely Restored When an interruption tothe ICT connection thatcouldnotberestored ends a meetingearly, the board may continuethemeeting at a later time if it has “provided reasonablenoticeto thepublic as to how themeeting will be continuedatan alternative date andtime.” Withoutreasonable noticeof continuation,themeetingis automatically terminated. OIP’s tips for providing reasonable notice to continue any Sunshine Law meeting – whetherin person or connectedby ICT – are: 1. The board’s noticeof the meetingmay contain acontingency provision statingthat if theboard loses onlineconnection,then people shouldcheck theboard’s website(give address) for reconnection information. Alternatively,thenoticecouldprovide that if the connection is lost for more than 30 minutes,the meeting will be continuedtoa specified date andtime, with thenew link for the continuedmeetingeitheron theagendaitself or to be provided on the board’s website. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 6 2. At thestart of theonlinemeeting,theboard couldannounce thatif onlineconnectionis lost, information on reconveningorcontinuingthe meetingwill be posted on its websiteandgive the website address. 3. If the audioandvideo havegonedown butthere is still a chat function or similarmeans of communication available,theboard shouldalso post a visual noticeof the continuation of ameeting through thechat function. 4. If visual connection has been lostduringa meetingusingICT, the board could audibly announcethatthemeetingwill be continuedand direct peopleto its website wherethe relevantinformation has been posted. 5. If time permits, the board can email people on its email list with a noticeof continuation of themeeting. See the trainingor forms page on OIP’s website for a form of the noticeof continuation. V. Additional Requirements A. Notice The notice for a multi-site meeting must list all the locations where board members will be attending as public meetingsites (except that disabledboard members havethe ability to attend from an undisclosed privatesite, as explainedbelow). The public meetinglocations are set at thetime the noticeis filed. Board members may attend from any of the public meeting locations listed on the filed notice. The noticeis not requiredto specify which boardmembers will attend from which location. The noticed locations cannot be cancelled or shut down early while the meeting goes on at another public meeting location listed on the filed notice. A board can eliminate oneof the noticedpublic meetinglocations when themeetingis still more than 6 calendardays away by cancellingthe entire meetingandthen filinganew noticewith only the desiredlocations. Just as with an in-person meetingat a singlesite, however, if the meetingis less than 6 days away, the board has insufficienttime to filea new agendaand so it must either convenethemeeting with theoriginally noticedlocations,or cancel themeeting. If a board chooses to provide any additional locations, the noticemust state that no board members will be attending from an additional location and that, if the connection between theadditional locationandthemeetingsite(s) is lost, whether the meeting will continue without the additional location or will be automatically recessed to restore communication. B. Procedures to prevent meeting disruptions The Sunshine Law continues to allow boards to remove persons who willfully disrupt a meeting. HRS § 92-3. Therefore, a board holdingaremote meeting could disconnect aperson creating an onlinedisruptionorcouldtake reasonableaction In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 7 to prevent disruption. For example, obsceneimages through “zoombombing” can be avoided if the board’s meetingis conductedas a one-way livestream, whilepublic oral testimony is presented audibly overa telephonelineratherthan as an interactive video feed. C. Disability requirements A board member with a disability that limits or impairs themember’s ability to physically attend a noticedmeeting may participate in a multi-site meeting from a private, non- noticed location,so longas themember is connectedby audioandvideo andiden tifies whereheor sheis andwhoelse is present. Thus,for example, a disabledboard member may participate from a private residenceor hospital,so longas the other requirements are met. The Office of Information Practices does not administer or have jurisdiction over disability issues, which aregoverned by federal law such as the Americans with Disabilities Act(ADA) or other state laws. Boards are, however, requiredto modify policies andprocedures to accommodate individuals with disabilities undertheAmericans with Disabilities Act (ADA), andshouldconsultwith theirown attorneys regardingcompliancewith theADA, or with the State Disability andAccess Communication Boardwhosewebsiteis https://health.hawaii.gov/dcab. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 8