The Ontario County Board of Supervisors was scheduled to hold its regular monthly meeting at 6:30 p.m. Wednesday. The meeting occurred via WebEx conference call due to the COVID-19 crisis. For the second month in a row, both residents and the media were excluded from this meeting. Unfortunately, this is becoming a recurring theme with government meetings during COVID-19.
New York has an Open Meetings law that requires that City Council and Board of Supervisors meetings be open to the public with some very limited exceptions. This law is contained in New York’s Public Officers Law, Article 7, Section 100, et al. The law also provides that government entities must provide notice of all public meetings to both the general public and the media. Notices must be electronically sent to the media and posted conspicuously for the public.
Governor Andrew Cuomo’s New York Pause Order (Executive Order 202.1) closing New York State because of COVID-19 did not suspend the Open Meeting Law. Rather this order simply stated that public meetings should be held remotely and that public access to remote meetings should be ensured. In fact, the Open Meetings Law already provided that public access to any meetings held via conference call or live streamed had to be provided for. So, it is hardly a new concept for government entities that they are required to provide the public with access to all City Council, Board of Supervisors, or other meetings covered by the Open Meetings Law that are held via conference call or live streaming.
This has not happened consistently during the COVID-19 crisis. First, the Ontario County Board of Supervisors did not provide accurate access information for the April 16, 2020 Board of Supervisors Meeting. The meeting, which included a public hearing, went on despite the fact that no members of the public or media were able to observe the Board’s actions. At the time, Board Clerk, Kristin Mueller wrote via email that the public and media were prevented from accessing the meeting because of unforeseen technical access issues. The County did retrospectively post a link to the recorded meeting, and Ms. Mueller assured Fingerlakes1.com via email that the technical issues would be resolved for the Board’s next meeting.
Despite Mueller’s assurances that the technical issues would be resolved, Thursday evening’s Board meeting was once again inaccessible to the public or media. When users clicked on the link the Board provided via its agenda, they were taken to a page that stated that the linked webpage could not be found. When users went directly to the WebEx application and entered the meeting code and password the County provided on the agenda, they were given a message that the meeting was not open. These error messages were still being received as late as 21 minutes after the meeting was scheduled to have begun.
In response to emails from Fingerlakes1.com, Mueller replied that she did not know that the link on the agenda was not working until someone texted her at 7 p.m. during the meeting. She indicated that she had no way of fixing the problem once the meeting began. Further, Mueller asserted that “I had no way to anticipate this problem this evening.” Mueller further stated that she will be looking into the situation further and that if people have issues logging in “prior” to the meeting they can email her and she will provide assistance.
Mueller’s assertions simply do not make sense. It seems that if the County truly valued public participation in their Board of Supervisors meetings, they would take the simple steps of verifying that the links provided on their agendas were accurate and worked prior to publishing the agenda. In addition, it would also seem reasonable that someone would verify the accuracy of the link on the night of the meeting as the meeting was being opened to the public. Regardless, the public should not have to jump through extra hoops such as texting, if you happen to be an individual who has her cell phone number or emailing the Board Clerk to get access to the meetings. Rather, under New York Law these meetings are to be open to all of the pubic without undue burdensome hoops to jump through.
Fingerlakes1 consulted the New York State Committee on Open Government at the New York Department of State regarding whether the technical glitches experienced with the Ontario County Board of Supervisors and Geneva City Council (described below) meetings constituted a violation of the Open Meetings Law. Kristin O’Neill, Assistant Director of the Committee on Open Government responded that “if the public body is aware that problems with technology have prevented the public from being able to remotely access the meeting, it should postpone until the problems have been corrected. It would be like having a meeting in Town Hall with the doors locked.” O’Neill further stated that continuing meetings in violation of the Open Meetings Law could give rise to legal challenges to any actions taken during the meeting.
Fingerlakes1.com has also reached out to Ontario County Board of Supervisors Chairman Jack F. Marren, and Interim County Administrator Brian Young for comment on the topic but as of the writing of this article they had not responded to the request for comment. Should they respond, Fingerlakes1.com will add their comments to this article when they are received.
Unfortunately, Ontario County is hardly the only issue with access to public meetings. On Wednesday, May 6, 2020 the Geneva City Council held its monthly meeting. This meeting was held via zoom conference call due to COVID-19. The agenda for the meeting was difficult to locate because the City only posted it on its calendar and did not post it on the City Council’s website. Once located, the only information provided for accessing the meeting was that it would be televised live via Finger Lakes Television, the County’s public access television station that is operated on the campus of Finger Lakes Community College. The agenda did not provide the direct Zoom Access information. The Zoom access information was only provided to residents who filed requests in advance of the meeting to make public comments.
As is far from uncommon with the Geneva City Council, the meeting ran long. At approximately 9:22 p.m., just after the Council had voted on its first resolution of the night, Finger Lakes Television cut the feed to the live meeting and switched its programming to a pre-recorded previously aired broadcast of an Ontario County COVID-19 update. Since the Finger Lakes Television feed was the only means of access to the meeting that the City had provided, this switch deprived City residents and the media of the opportunity to observe the balance of the meeting.
Geneva City Manager Sage Gerling indicated that the City will be resolving the issue of making their Council meeting agendas easier to locate. Gerling also indicated that the City Council ended their meeting as soon as they learned that Finger Lakes Television had cut the live feed. However, a review of the video posted on Finger Lakes Television’s website (https://fingerlakestv.org/geneva-city-council-meetings/) indicated that the Council’s meeting went on for roughly 1 hour and 8 minutes beyond when Finger Lakes Television terminated their live feed of the meeting. This 1 hour and 8 minutes of the meeting essentially amounted to a closed meeting in violation of the Open Meeting Law since the public and media were excluded from observing it.
Lenore Friend, FLCC Liaison to Finger Lakes Television indicated that the cutoff occurred because of a miscommunication between staff due to the fact that staff are unable to work closely together because of COVID-19. This explanation also rings hollow because Thursday evening Finger Lakes Television apparently was once again poised to cut-off the Broadcast of the Canandaigua City Council meeting at 9:00 p.m. even if the council business had not been completed. As it was, the broadcast was terminated abruptly as the council was adjourning. In addition, these broadcasts are not new for Finger Lakes Television as they have been undertaken via contracts with the City of Geneva and the City of Canandaigua for quite some time.
Finally, notice issues have persisted throughout the COVID-19 pandemic. For example, although the Canandaigua City Council regularly notifies the media of its regular meetings via email, the Council held two emergency meetings on April 9th, 2020, and on April 16th, 2020. The April 9th meeting was called to schedule a public hearing, which was held on April 16th, 2020. These were special meetings that did not appear on the Council’s regular meeting calendar and do not appear to have been affirmatively noticed to the public. In fact, its entirely unclear, particularly given that during the COVID-19 crisis the public would not be visiting the normal locations where the City posts meeting notices, how the Council reached out to notify the public of these meetings, including the public hearing. O’Neill from the Committee on Open Government stated that public entities remain obligated to comply with the Open Meetings Law’s notice requirements regardless of whether the entity is operating under normal circumstances or extraordinary circumstances such as the current New York Pause Executive Order. Fingerlakes1.com has reached out to the City of Canandaigua for comment on these notice issues and we will add their response if we receive one.
Ultimately, a crisis such as COVID-19 is when citizens, either directly or through the media, needs access to government information the most. Currently, entities in Ontario County are letting the public down. Regardless of whether it is intentional or via simple negligence, government entities are not meeting their obligations to ensure that virtual meetings are completely and easily accessible to the public and media. It is time for these entities, especially Ontario County, to take public access to virtual meetings seriously.
Todd covers local government in the Finger Lakes. He has a JD degree the Lincoln Law School of Sacramento. Send tips to [email protected].