Lawmaking, pandemic version

Confused about the anger over the April 23 county legislative meeting? Here’s a look at the problem

By ANNEMARIE SCHUETZ
Posted 5/5/21

MONTICELLO, NY — The controversy that is blowing up over the county’s April 23 meeting raises some questions. Why couldn’t legislator Nadia Rajsz vote that day?  

While …

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Lawmaking, pandemic version

Confused about the anger over the April 23 county legislative meeting? Here’s a look at the problem

Posted

MONTICELLO, NY — The controversy that is blowing up over the county’s April 23 meeting raises some questions. Why couldn’t legislator Nadia Rajsz vote that day?  

While the state has allowed phone and video voting via executive order, the county, since it is meeting in person, reverted to its own rules, which stipulate that a legislator can only vote in person or connected via video. 

Some ask, is that legal in a pandemic? 

What the county’s rules say

The video-versus-audio issue is not addressed in the rules per se. Here’s the language: “Members appearing via electronic means shall be included in the quorum count. Members may only appear via electronic means under emergency or exigent circumstances. Members may only appear via electronic means upon the approval of the presiding officer or upon the approval of a majority of the members of the legislature.” 

What constitutes “electronic means” is not specified. 

On January 28, during the discussion of the rules, legislative parliamentarian Tom Cawley, when asked about Rule 7 (which covers remote voting), said, “I have to apologize—the ‘appearance by telephone’—that was a mistake, that should not have been included. The Committee on Open Government has opined that’s probably likely to change, but currently, you can appear by videoconference. It’s in the definitional section of the Open Meetings Law itself. It permits videoconferencing, which is what we do... if one of the members can’t make it here, you can still be a member of the quorum and vote, but only by videoconference.” 

“So you can Zoom or Facetime in, but—,” Doherty said.

“So long as IT can put it up, the public has to be able to see the members,” Cawley finished.

Perrello argued that even videoconferencing shouldn’t be acceptable except during a pandemic or under the governor’s orders, because some legislators would use it as an excuse to avoid coming to meetings. “I say ‘no’ to any kind of telephone, via Facebook, Zoom, or anything that’s worded like that.” 

“It’s part of the state statute, part of the Open Meetings Law... the order of the governor did allow it during the pandemic,” Cawley said,  “which would be contrary to our current rules.” 

Nadia Rajsz argued that legislators who are home sick should still be able to vote this way. “I don’t think it should be part of the normal type of meeting... during special circumstances.” 

Cawley said prior to five or six years ago, electronic appearances weren’t permitted by the state Open Meetings law. “You could listen only.”  The change was originally to help bodies achieve quorum now that people are used to doing things electronically. “It’s permitted by state statutes, not by telephone but by videoconferencing,” he said. “We have to be able to put it up on a screen because the public has to be able to see them and hear them.”

Remote voting became critical in the pandemic. “Right now, we’re working under the governor’s order because he hasn’t changed his rules yet,” Cawley said.  

County spokesman Dan Hust said, “However, language allowing participation ‘by electronic means’ was incorporated into the final approved draft, the intention being that such means would be of a videoconference nature.”

What the state says

The pandemic has upended usual procedures. 

On March 12, 2020, Gov. Cuomo issued Executive Order 202.1, which allowed public bodies to meet remotely.  

Included in the order is the following:

“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 proceedings and that such meetings are recorded and later transcribed.”

E.O. 202.1 has been extended and amended numerous times since. 

“The county’s position is that since they are having in-person meetings, E.O. 202.1 is no longer relevant,” said Hust. 

“Gov. Cuomo’s Executive Order 202.1 applies to meetings conducted remotely, as referenced by the order’s permission to suspend Open Meetings Law when a public body meets ‘without permitting public in-person access.’” he said. “The legislature has been convening public in-person meetings and permitting in-person public access for much of 2020 and all of 2021, so it is the county’s position that EO 202.1 is not applicable to legislature meetings at this time.”

The Committee on Open Government’s opinion

A March 25, 2020 letter from the Committee on Open Government to Linda Baldwin at the Department of State (available on their site) notes that, “In general, and in the absence of the order, which is discussed below, the [Open Meetings Law] and the [General Construction Law] require that voting and action by a public body may occur only at a meeting during which a quorum has physically, or virtually by videoconference, convened.” However, under E.O. 202.1, certain aspects of the Open Meetings Law have been suspended, they say. “In the committee’s view, the plain language of the order temporarily suspends the requirement that otherwise exists pursuant to the provisions of the Open Meetings Law and General Construction Law discussed above that members of the board be physically convened or convened by videoconferencing in order to achieve a quorum and conduct the public business of the board. The order similarly may fairly be read temporarily to suspend the Open Meetings Law requirement that notice of the meeting includes the physical location of each board member who is participating by telephone or similar means.” 

So far, the directive has been extended until Wednesday, May 19, 2021. 

The Conference of Mayors weighs in

The New York Conference of Mayors offered updated guidance on videoconferen

cing/conference call meetings on September 4, 2020. They recommended practicing with the technology before the meeting and added, “Make sure that every member can connect, share their screen (if necessary) and use their microphone and video camera.” 

They also acknowledged that state law isn’t clear when it comes to holding meetings in a pandemic. Officials were encouraged to consult with their municipal attorneys before “taking action that is not clearly authorized under New York State law.” 

Some remaining questions

Why did the meeting have to be held that day, when most of the legislators had to appear remotely or couldn’t be there at all?  

Why is the video connection important when the state is willing to allow phone voting in a pandemic?

When will all legislators be required to attend in person in order to vote? Or will video voting always be an option? 

A final comment from the county

“It remains critically important for this legislature and many other public bodies that members vote via a video and audio connection, so that identity can be verified,” said Hust. “The parliamentarian is tasked with advising the legislature of these rules and responsibilities, and the chairman is legally obligated to adhere to and enforce such rules and responsibilities.”

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