LFN 2020-21

1 New Emergency Regulations: Remote Public Meetings Held During a Declared Emergency The COVID-19 pandemic has forced local government entities and boards of education throughout New Jersey to hold public meetings remotely. Due to the restrictions necessitated by COVID-19, the Division of Local Government Services issued remote meeting guidance in March for local government entities, including the conduct of public meetings held by planning boards and zoning boards of adjustment. Section 8 of newly enacted 2020, c. 34 authorizes the Division Director to promulgate regulations establishing standard protocols for remote public meetings held by a local public body during a Governor-declared emergency, including minimum procedures to be followed to provide reasonable public notice and allowance for public input.

2 Local public bodies are defined in the law as any public body subject to the Open Public Meetings Act ( 10:4-8 et seq.) with a territorial jurisdiction equal to or less than a county. In addition to counties, municipalities and boards of education, this law encompasses the public bodies of local authorities, fire districts and other local special districts, any boards, commissions, or other entities that are a creature of one or more counties or municipalities. This law does not apply to advisory committees or similar bodies to which the Open Public Meetings Act does not apply. The Director has promulgated emergency regulations codified as 5 through that implement the new law.

3 These protocols aim to ensure continuity of government operations and transparency in conducting public business when an emergency requires a governing body meeting to be held remotely. The emergency regulations are presently in effect and have been concurrently proposed for permanent adoption in the upcoming October 19, 2020 New Jersey Register. Please submit any comments on the regulations no later than November 18, 2020. Contact Information Director's Office V. F. Local Assistance Bureau V. F. Financial Regulation and Assistance V. F. Local Finance Board V. F. Administrative Services Unit V. F. Mail and Delivery 101 South Broad St.

4 PO Box 803 Trenton, New Jersey 08625-0803 E-mail: Distribution Municipal Clerks Freeholder Board Clerks Authority Officials Fire District Officials Land Use Boards Boards of Education LFN 2020-21 September 24, 2020 Local Finance Notice 2020-21 September 24, 2020 Page 2 Remote Public Meetings Held During a Declared Emergency In-person public meetings where the local public body meets in one location and that members of the public may physically attend remain the default. Even during a declared emergency, public meetings held exclusively by remote means are meant to be held under limited circumstances when the declared emergency prevents a public meeting from safely being held in a physical location.

5 The declared emergency must be a public health emergency pursuant to the Emergency Health Powers Act, or a state of emergency pursuant to the Disaster Control Act, or a state of local disaster emergency, that has been declared by the Governor and is in effect. Remote public meetings are any gathering by means of electronic communication equipment, which is attended by, or open to, all of the members of a public body and held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. If a declared emergency requires a local public body to hold a remote public meeting to conduct public business, an electronic communications technology shall be used that is routinely used in academic, business and professional settings, and is widely accessible to the public at no cost.

6 Participant capacity in the meeting room shall be consistent with the reasonable expectation of the public body for public meetings of the type being held. If a remote public meeting is held by audio and video, the public shall also have the opportunity to participate in the meeting by audio and video. Please note that if the local public body meets in person for a meeting, the regulations require members of the public to be able to attend the meeting in person. If a local public body is holding an in-person meeting in a location where, pursuant to State and/or Federal guidelines meant to mitigate the risk of contagious infection, the declared emergency necessitates capacity restrictions reducing the number of individuals that can be present in the meeting room to an amount below that reasonably expected for the public meeting by the governing body, the local public body must either hold the in-person meeting at another location with adequate socially-distanced capacity for the reasonably expected public attendance.

7 Or hold the public meeting both in-person and as a remote public meeting pursuant to 5 through This requirement seeks to ensure adequate public access. Under other circumstances, nothing prevents a local public body from holding a remote public meeting in conjunction with an in-person meeting as a means of increasing public access and participation. Technological and Procedural Matters Remote public meetings may be held by means including, but not limited to, audio-only teleconferencing, electronic communications platforms with video and audio, and Internet-accessible technology such as live-streaming.

8 The method, platform, or application must be in common use among academic, business, and professional settings as well as widely available to the public at no cost. When utilizing an electronic communications platform or Internet-accessible technology to hold a remote public meeting, the local public body shall also provide a telephonic conference line allowing members of public with limited or no internet access to listen and provide public comment. To ensure adequate public access, particularly given the potential for an increase in public participation due to the convenience of viewing a public meeting remotely, participant capacity on the selected technology should be consistent with the reasonable Local Finance Notice 2020-21 September 24, 2020 Page 3 expectation of the public body for public meetings of the type being held and shall not be limited to fewer than 50 public participants (beyond those persons required to conduct business at the meeting).

9 Communications technology used for a remote public meeting must allow the local public body to mute the audio of all members of the public and members of the public to mute themselves. Any electronic communications platform or Internet-accessible technology used shall also enable the local public body to regulate participation by individual members of the public such as through an individual muting function. For example, the meeting organizer could accept individuals into a virtual lobby with all individuals wishing to speak moved to a main line for the meeting. Although a telephonic audio conference call line does not necessarily have similar capabilities for restricting individual participation, that particular technology must have a queueing or similar function that may be used by a local public body to regulate public comment.

10 For example, AT&T offers a question and answer function as a means of regulating individual public comment on an audio teleconference line. A local public body holding a remote public meeting shall allow members of the public to make public comment by audio or by audio and video. In advance of the remote public meeting, the local public body shall allow public comments to be submitted by electronic mail and in written letter form to the official responsible for creating the meeting agenda ( municipal clerk, board secretary) by a reasonable deadline. A reasonable deadline should balance the public s ability to review the meeting agenda while allowing the municipal clerk or similar official sufficient time to prepare public comments to be read at the meeting.