The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
In the post Covid-19 world that we live in, one of the big “Covid Era” trends that has lingered on and appears to be here to stay is the increased interest in remote participation options for public meetings. During the pandemic, many municipalities began live streaming their public meetings and allowing public attendance via platforms such as Zoom or Microsoft Teams. Some public bodies even held entirely virtual meetings under the expanded remote meeting rules put in place during the height of the pandemic. Now that those emergency orders have long expired, and we are back to adhering to the current state of RSA 91-A when it comes to public meeting rules, many questions have arisen regarding what level of remote participation remains for both members of public bodies and members of the public. This guidance document will address some of the most common questions our legal services team receives on this topic.
PUBLIC BODY MEMBER REMOTE PARTICIPATION
Q. Are members of a public body still allowed to attend and/or participate in public meetings remotely?
A. Yes. In fact, they have been allowed to participate remotely since long before the pandemic, but specific rules must be followed. RSA 91-A:2 states that a board may choose to allow one or more members of a public body to participate remotely if a quorum of the public body is still present, in person, at a physical location open to the public, and the board member states for the record why it is not reasonably practicable for them to attend in person.
Q. What does the law mean by “not reasonably practicable”?
A. This is an undefined term in the statute. Therefore, it can be interpreted differently by each individual municipality or by each individual board or body. It would be advisable for public bodies to define this term for themselves in their rules of procedure. “Not reasonably practicable” could be defined as something as minor as a person is recovering from an illness and they don’t want to get everyone else sick, or it could be set at a higher bar, like the person is traveling out of state for work or a family emergency. Wherever the bar is set, the important thing is to have it clearly defined in writing and to apply the standard consistently and fairly.
Q. What if the same person is always appearing remotely and it seems like they may be abusing this privilege?
A. Notice how we use the term “privilege” when referring to the ability to participate remotely? That is because RSA 91-A:2 says that public bodies may allow a member to participate remotely. It does not say that they shall or must. In the law, the use of the term may in a statute means that it is optional. In a situation where one particular member of a public body may be abusing this privilege of appearing remotely, the first step would be to more clearly define the term “not reasonably practicable” in your rules of procedure. If that does not solve the problem, a public body is always free to choose not to allow remote participation by board members if need be.
Q. If a public body member is appearing remotely, can they still vote?
A. Yes, remote board members are granted the same authority as if they were physically there in person. They may vote, make motions, speak, attend non-public sessions, and participate in any other way necessary. They are not limited by the fact that they are appearing remotely. Consequently, if you are going to allow remote participation, it is important to make sure that the remote member can hear and be heard by those in attendance adequately to facilitate their participation. It is also important to note that all votes taken while any member is participating remotely must be roll call votes.
MEMBER OF THE PUBLIC REMOTE PARTICIPATION
Q. Are we required to allow members of the public to “zoom in” to a public meeting? What if we have allowed this in the past? Must we continue to do so?
A. During the pandemic, many public bodies allowed members of the public to participate in public meetings via Zoom or some other remote platform. This was a lot more practical when the entire meeting was taking place via Zoom. It is less so now that there needs to be an in-person quorum. However, it is entirely the choice of the municipality if they wish to continue to allow members of the public to attend meetings remotely. Just because you have done it in the past doesn’t mean that you must continue to do it in the future, but you do not want to be in a situation where you are picking and choosing certain situations where you are allowing it and others when you aren’t. Again, the best approach is to have clearly defined rules as to when, if ever, a member of the public will be allowed to appear remotely at a public meeting. Consider limiting remote public participation to only those circumstances where the person absolutely needs to be able to participate and there is a significant reason why they could not be there in person.
Q. What if we just stream our meetings online, must we allow remote public participation or can we just provide viewing access?
A. You can absolutely provide only viewing access to a live stream of a public meeting. Remember, under RSA 91-A the public does not have a right to speak at a public meeting unless the public body chooses to grant them that right. This same limitation applies to a public meeting that is being streamed. You are free to allow the public to access a live stream without being compelled to allow remote participation. However, you should make sure that this is clear in your rules of procedure. If you are going to allow in-person attendees to speak, you again want to make sure you are very clear that the live stream is just for viewing purposes and that, in order to speak, people must attend in-person.