The NJSBA held a Facebook Live event on Thursday, March 26. The topic was the Sunshine Law in the COVID-19 era. Below is a summary of the questions and answers during that event.
Question: What are the latest developments regarding COVID-19 and the Sunshine Law? What are you hearing?
Answer: The “Sunshine Law” requires certain proceedings of government agencies to be open or available to the public. In this age of COVID-19, the law has evolved rapidly. For many years, boards of education did not always have clear guidance regarding the Sunshine Law and remote participation in meetings.
In the past, in an effort to provide greater clarity, the NJSBA offered a best practice saying that boards should pass a “remote participation policy” before engaging in a remote meeting. This policy included the conditions under which a board would permit remote participation by members, whether a quorum of the board needed to be physically present, and whether the board would permit remote participation in closed session.
Starting in March 2020, New Jersey rapidly began to provide needed clarity. On March 12, the Division of Local Government Services (DLGS) in the N.J. Department of Community Affairs issued initial guidance on the Sunshine Law. This guidance stressed the need to still have a physical meeting place, unless otherwise directed by state or local officials and the need to provide a means for the public to observe the meeting and to provide public comment as required by the Sunshine Law.
Guidelines Change Then on March 23, in response to Executive Order 107, DLGS issued further guidance which strongly recommended that meetings only be held remotely, without a physical meeting place, for the foreseeable future. The March 23 guidance also offered practical resources such as links to various virtual meeting services.
Meanwhile, on March 20, the governor signed P.L. 2020 c. 11, which had only been introduced in the Legislature four days earlier. This new law amended the Sunshine Law during declared states of emergency by permitting meetings to be held by electronic means. Without having a public meeting space, the board could meet remotely while being open to the public, voting and receiving public comment.
Question: While it is possible during declared states of emergency that boards can have remote participation, they still need to adhere to the principles of the Sunshine Law. What are the core principles of the Sunshine Law that they must take into consideration?
Answer: The core principles of the Sunshine Law include: a majority of the board must be present to discuss public business and that the public has the right to witness (albeit through audio or audio/visual means) the meeting and the right to comment during the meeting. Additionally, proper notice must be given of the meeting.
Question: If most of the members are participating via technology, does the public need to be able to see and hear everyone remotely?
Answer: The Sunshine Law says that the public has the right to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies. The March 23 guidance suggests that either telephonic or internet streaming of the meeting would satisfy the requirements of the Sunshine Law.
Question: Now that more meetings are going “virtual,” do boards need to allow the public an opportunity to participate remotely?
Answer: Yes. In accordance with N.J.S.A. 10:4-9, the board must provide a period of public comment at every meeting. Additionally, the recently enacted P.L. 2020, c. 11 specifically says that a public body is authorized to receive public comment by means of communication or electronic equipment.
Question: What happens if more than 50 people attend a board meeting?
Answer: The reference to 50 people relates back to the federal Centers for Disease Control guidance issued on March 15 that was incorporated into Gov. Murphy’s Executive Order 104, which limited gatherings to 50 people or fewer. Since that time, Executive Order 107 has been issued. In E.O. 107, there is no reference to the 50-person limit. Instead the order requires, “All New Jersey residents shall remain home or at their place of residence” with certain exceptions. Boards of education should consult with the board attorney and local health officials concerning whether any physical gathering for board meetings is advised.
Question: When a board advertises for a meeting and there is a remote participation option, does the board have to also notify the public of instructions on how to participate?
Answer: For physical meetings, the Sunshine Law requires boards to provide “the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting” of the board. Not giving the public instructions on how to participate in a remote meeting might be akin to giving the public physical notice of the time and date of a meeting without giving them the location or room where the meeting will be held. The most recent guidance from the DLGS specifically says that “(l)ocal units must ensure that the public retains the ability to attend and provide comment at public meetings. Therefore, local units should provide instructions to the public regarding how to access a remote meeting and the procedures for commenting through whatever equipment or medium is utilized.”
Question: What is the role of the board attorney, and what should boards be asking them at this critical time?
Answer: The board attorney is a critical resource for the board during this unprecedented time. In addition to advising the board on Sunshine Law issues, the board attorney can assist the board with labor relations and employment matters or matters related to the effective delivery of general and special education services to students or any other matter for which the board needs legal guidance.