On Nov. 18, the NJSBA and the N.J. League of Municipalities jointly filed comments with the state’s Division of Local Government Services (DLGS), concerning its new remote meeting regulations. In their memorandum, the organizations raised many concerns about the regulations including whether these emergency regulations created an unfunded mandate, posed an undue administrative burden, and exceeded the legislative intent of the enabling statute, N.J.S.A. 52:27D-18.11.
Software Requirements The new regulations create an unfunded mandate because they require that the software used for the remote meetings meet certain federal requirements that are not readily available for free, creating a cost to local public entities without providing appropriate funding. Specifically, the regulations require that the electronic platforms used for public meetings be hosted on servers using the FedRAMP cloud standard, or that the cloud host provides annual evidence of an audit report. Under the DLGS guidance issued with these regulations, free meeting services are not to be used. Therefore, this becomes an unfunded mandate for local public bodies.
Estimating Audience Size The regulations require that if the board meets physically during the pandemic, the audience must be able to as well. The regulations require that the board meet in a room that can accommodate all of the audience members who wish to attend in person. NJSBA and the league raised concerns over this requirement as the regulations indicate that the meeting must stop or be moved to a larger room. The regulations do not give the option to create an overflow room or ask that citizens watch the meeting on the internet, rather than attend in person.
Reading of Citizen Comments The regulations require that citizens be permitted to submit letters prior to the meeting that are then read during the public comment portion. The NJSBA and the league pointed out that this requirement exceeds the public comment requirements of the Sunshine Law and could create liability for local public bodies because the official may not place the same emphasis on various words or phrases as the actual commenter. As such, because the comments are read by a government official, the public may view the reading or summarizing of such comments as government censorship, creating unnecessary liability for the local public body and the official. The regulations also require that a board “address” the issues raised in the letter. Addressing comments at meetings is not required by the Open Public Meetings Act. This creates additional liability as local public bodies try to immediately address issues raised in the letters without engaging in their usual deliberative processes.
To read the full joint memorandum submitted by the NJSBA and the League of Municipalities, click here.