Virtual Public Meetings

As the national response to COVID-19 continues to focus on the need for social distancing, Clarion has been exploring options for conducting virtual public meetings and hearings in order to keep the business of governing moving forward.

The bottom line is that local governments’ ability to conduct business with virtual or electronic is mostly a matter of state law.  So, the first questions to be answered are:

1. Whether your state, city, or county already authorized virtual public meetings or hearings before COVID-19, and if so, under what conditions? and;
2. Whether your state, city, and/or county has adopted emergency measures during COVID-19 that broaden that general ability to conduct public meetings virtually?

Many of our partner communities are finding that state law is largely silent on these topics.  In-Home Rule states, that silence can often be filled through creative local actions that allow land use matters to move forward–provided those local actions are thoughtful, transparent, and very careful to protect the due process rights of everyone involved.

The next question relates to the which of three types of meetings or hearings you are planning to conduct:

Type 1:  A public meeting not resulting in a formal recommendation or decision.  This scenario allows local governments the greatest freedom to innovate without significant risk. If state law does not require you to conduct the meeting in a specific way, then it is usually up to the local government whether and how to conduct the meeting. As an example, James City County, VA, live-streamed a virtual public meeting with additional public access TV coverage.  Rochester, MN, and Fairfax County, VA, recently asked Clarion Associates to prepare videos explaining proposed regulatory changes, and the local government made the video available on its website and sent an e-mail to stakeholders notifying them of the availability of the video. In each case, the local government intends to take comments, publicize the comments, and move forward with the planning and regulatory drafting effort – knowing that the public will have several more chances to weigh in on proposed changes before the formal adoption process.

Type 2:  A public hearing for a recommendation or decision on a quasi-judicial matter like a rezoning.  These types of meetings are the hardest to conduct virtually since due process often requires some ability to testify and (in many states) to cross-examine or question those who testify, which is often awkward to do in on-line platforms.  At a minimum, the ability for a Planning Commission or other appointed body to hold virtual quasi-judicial hearings needs to be authorized by state law or by Home Rule authority and the governing body.  Among those with the authorization to innovate, some of our partner communities have postponed these types of hearings, while others are exploring platforms that allow needed interaction through “chat” or “question” features.  So far, most agree that the resulting hearings are awkward and long as staff struggle to make sure that everyone who wants to be heard is heard.  If you decide to go this route, we recommend publicizing the upcoming action on the government’s website and providing at least the same level of e-mail and mailed notice to adjacent property owners, HOAs, and neighborhood organizations that would be given for an in-person hearing. Then conduct the hearing virtually, take comments, ask questions, facilitate comments and answers through chat boxes, and create a recording of the entire event. As a precaution, you might consider:

• Keeping the public hearing open until the following meeting–simply to allow an extra opportunity for testimony;
• Clearly publicizing the proposed recommendation or decision;
• Publicizing the availability of the recording of the hearing; and/or
• Delaying the effective date of the recommendation or decision for 10-14 days to allow for reconsideration if many new comments are received.

The real questions–as always–are whether the process has been fair and transparent and whether the public was given adequate notice and a reasonable opportunity to participate.  Because many quasi-judicial actions are not controversial and the related public hearings are poorly attended, it is also worth considering whether it is likely that anyone with notice would have a reason to challenge the recommendation or decision. If the answer is probably no one, the risk of moving forward with plenty of notice and careful attention to due process is probably low.

Type 3:  A public hearing for a recommendation or decision on a legislative matter. These types of hearings are often easier than quasi-judicial hearings to conduct virtually.  In most states, the types of due process required for a recommendation or decision affecting the community as a whole (or a substantial part of it) are easier to satisfy than when the action involves a specific piece of property. Again, the ability for a Planning Commission or other appointed body to hold hearings virtually needs to be authorized by state law or Home Rule authority and the governing body. If the hearing is conducted with plenty of notice and with opportunities to watch the proceedings; offer testimony (through chat boxes, by phone, or in writing); and ask questions about that testimony, the risk of later reversal of may be low. This is particularly true if the action is a recommendation, not an action to approve or deny.  Recommendations on legislative matters are almost always subject to who shows up, and if good advance notice has been provided, then the participation or non-participation by the public and stakeholders is unlikely to be biased one way or the other just because the hearing is conducted virtually.  In many states, as long as there is some evidence in the record to support the appointed or elected bodies’ action, that action does not have to be consistent with any of the (virtual or in-person) testimony offered at the hearing, so it is fairly hard to argue that the participation (or not) of a particular stakeholder would have changed the outcome and that the recommendation or decision should, therefore, be annulled or reversed.

Challenging times call for thoughtful responses – and for innovative thinking that allows the important business of local government to move forward. Clarion Associates will continue to work with partner communities to find tailored, balanced approaches to do that while respecting the due process rights of everyone involved.

Clarion Associates is not a law firm, and the information in this message is not legal advice–it reflects what we have gleaned from our experience and research with clients.  If you are a government entity that is considering the use of virtual public meetings and hearings, please contact your staff attorneys before acting on any of the information above.