States Adapt Governance and Public Access to Telecommuting in Wake of Coronavirus

Facing an outbreak of Coronavirus, Gov. Ned Lamont suspended parts of state statute to give local government and public agencies the ability to hold meetings entirely by teleconference in an effort to limit spread of the virus.

Transparency advocates caution that public access depends on state and local officials using that technology properly, but experts say that requirements still in place uphold the spirit of the state’s open meeting laws.

“In theory, it’s a great idea. We want to avoid people gathering in large groups now as much as possible,” explained Mike Savino, president of the Connecticut Council on Freedom of Information. “But we also need to make sure people can access their government. So we need to make sure if they’re doing virtual meetings that this technology is running and working, and that they’ve ironed out any glitches. It’s not as easy as people think to have a meeting over Skype, especially if you’re trying to encourage the general public to participate.”

Gov. Lamont’s March 14 executive order still requires that

  • Remote government meetings must be accessible to the public in real time by phone, video, or other technology. 

  • Boards are required to make a recording or transcript of a meeting available on their website within a week.

  • All participants in any such meeting are also required to identify themselves by name each time before speaking.

Savino, who works as a journalist for WFSB, said that local governments and public agencies in the state vary in how much information is readily available on their websites. He noted that it’s likely harder for towns with smaller or less tech savvy staff to keep up.

“Some towns are great with sharing their information readily online, and some — even with the requirements that we have to get agenda and minutes and basic information on their calendar — some towns aren’t very good with that,” Savino said by phone on Tuesday.

On a Wednesday afternoon conference call held by Gov. Lamont, a CT Examiner reporter was temporarily dropped from the call that apparently exceeded the capacity of the teleconferencing system.

In other recent reporting by CT Examiner, the Lyme-Old Lyme Board of Education held a meeting Monday night with about half of its members attending in person and half teleconferencing in. Members calling in voiced difficulty hearing and understanding the discussion, as well as participating. Speakers frequently failed to identify themselves and the exact participation and outcome of votes was not clear.

Savino said he would advise governments to post information about remote meetings early and test out their technology beforehand to see if there are potential problems.

“Sometimes these meetings might be the only opportunity for a citizen to address their board or their town council,” Savino said. “I understand the desire is to avoid public spaces and that these can happen in a flash, but [we should] ensure the average resident is able to access these meetings because they may be more interested now than they were three or four weeks ago before we got into this situation. That access is something municipal officials should take seriously.”

The executive order

Under the Connecticut Freedom of Information Act, public agencies have long had the ability to call emergency meetings and members have long had the ability to call into a meeting and vote by phone. But the meeting could not be entirely online; the deliberation had to be happening in a physical location that the public could attend, according to Thomas Hennick, public education officer for the state Freedom of Information Commission.

“There was still a central location,” Hennick said by phone on Tuesday. “This [executive order] waives that requirement.”

Hennick said that he spent much of the days immediately after the order answering questions from government officials and the public. As one example, Hennick said that it’s still against state statute for government boards to hold meetings by email.

“The guideline would be to be as transparent as possible,” Hennick said. “Obviously, the rules have been relaxed to allow us to have the meetings and be safe, but be cognizant of the fact that this is still a government that needs to operate in the sunshine and be transparent. Don’t use this as an opportunity to do your work in secret.”

Hennick said the Freedom of Information Commission has no means to supply public agencies with technology for teleconferencing or to teach them how to use it. 

“That’s not anything that we’re trained for,” Hennick said. “These are tenuous times. We’re just going to have to figure it out. We don’t have anybody who can be a tech person for them.”

Mitchell Pearlman, who served as executive director and general counsel of the Freedom of Information Commission from its founding in 1975 until retiring in 2005, said that agencies could vary in the quality of recordings that they produced. But, he said, he believed the governor’s order comports with the state’s freedom of information laws so long as the additional requirements to allow the public to participate are met by agencies’ teleconferences.

“I have to say, when I first read about this [executive order] in the newspaper, I said, ‘Uh oh, this seems like a slippery slope,’ but then when I read the proclamation itself, I thought this exactly fit the commission’s guidelines,” Pearlman said by phone Tuesday.

“In my lifetime, we’ve never been confronted with an emergency like this,” Pearlman said. “But if I was at the commission, or back when I was at the commission, I think given the nature of the emergency I think the provisions that the governor put in are fair and reasonable and I don’t think the commission back then would have faulted them.”

States adopt similar measures

Other states have adopted measures to ease some open meeting law requirements in recent days. The Governor of New York and the Oklahoma State Legislature have granted temporary permission for teleconferences very similar to those enacted by Gov. Lamont, according to news outlets in those states.

David Cuilliers, president of the National Freedom of Information Coalition, said in a Wednesday phone interview that he was concerned government agencies around the country are “rushing to rash decisions” amid the outbreak and said that he’s heard more incidences than usual of the public being denied access to their government in recent days.

“We all understand that it doesn’t make sense to have everybody packed into city council chambers coughing all over each other,” said Cuilliers, who works as a journalism professor at the University of Arizona. “By all means avoid those situations, but just make sure that people have the option to participate virtually.”

Cuilliers said that governments should suspend “non-critical” decisions during this outbreak in the same way that average citizens have suspended travel, errands, and recreation. “We can’t give up on our democracy. There are ways of protecting people’s safety and protecting our democracy.”

Cuilliers cautioned that in moments of fear, the public is more willing to give up civil liberties, and that fear is often, ironically, encouraged by the news that people consume. He said that it’s more important now than ever for reporters to offer information responsibly. 

“Journalists have a responsibility to get out the facts, to get out all the information that people should know and get it from the government if they’re not forthcoming, but at the same time to provide context and perspective. And another one of our roles as journalists is to help people stay together,” he said.

“What’s more important than people knowing what’s going on and having accurate information? People crave at this time to know the threats and that’s critical,” said Cuilliers.