January 31, 2017
FROM: Robert J. Freeman
RE: AdvisoryOpinion, Videoconferencing
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
As you are aware, I have received your letter and a variety of additional material concerning an issue that has become the subject of controversy and contention.
You indicated that you serve as Chair of the Suffolk County Planning Commission, which will be conducting its annual meeting on February 1, 2017. The issue involves the propriety of a member of the Commission to participate fully by means of videoconferencing while at Kennedy Airport. You acknowledged that “it is permissible for a commission member to participate and vote via videoconference.” You added, however, that Valerie Smith, Assistant County Attorney, has suggested that the “the Jet Blue Terminal may not be a proper location...as it is not a ‘true’ public space.” She referred to an opinion rendered by this office that pertained to a situation in which an entire public body met in a restaurant in which it was advised that a meeting in a restaurant was improper because those who enter a restaurant are expected and may be required to make a purchase.
In a separate email addressed to me, you wrote as follows:
“Dennis Brown, Suffolk County Attorney, called me and told me that they were directing me not to allow commissioner to participate from the Jet Blue Terminal and if I did so, it would be under peril. When I requested a written legal opinion to that effect I was advised that they would not give me one.”
As chair of a municipal commission, I find it difficult to understand how your position could result in “peril.” Further, my understanding is that the County Attorney is not a member of the Commission, that he does not have the authority to direct you or other members to allow or prohibit participation, and that his role in this instance involves offering legal advice, which is yours to accept, reject or modify.
With respect to the issue itself, in my view, participation by a member in the manner described would not be prohibited by or inconsistent with the Open Meetings Law (OML). That statute refers to videoconferencing in §102(1), which defines the term “meeting” to include “the use of videoconferencing for attendance and participation by the members of the public body,” in §103(c), stating that “A public body that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any sit at which a member participates,” and in §104(4), which states that if a meeting is to be held by means of videoconferencing, “the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.” In addition, §41 of the General Construction Law entitled “Quorum and majority” states that a meeting may validly be held and a quorum validly convened by means of videoconferencing.
By way of historical background, the enactment of amendments to the OML concerning videoconferencing were preceded by discussions by the Committee on Open Government concerning possible methods of using technology to enhance the operation of that statute in October of 1993 and referenced in its 1994 annual report. At the time, one of the Committee members was serving as a member of a city council, and he sought to distinguish participation by telephonic conferencing from videoconferencing in a somewhat tongue in cheek manner. He said it might be great, for two reasons, to participate by phone from his living room. First, he wouldn’t have to face his constituents. And second, no one would see who’s whispering in his ear. The second comment was critical, for the OML’s statement of intent refers to the public’s right to attend, listen to, and observe the performance of those who represent the public. The key, therefore, of the Committee’s proposal, which eventually became law, concerned the public’s right and opportunity to see its representatives in action during meetings.
For obvious reasons, meetings of a public body optimally should take place in locations at which there is little or no impediment to the members of a public body’s attendance, or the public’s ability to attend. In many instances, however, distance alone creates an impediment. Nevertheless, that impediment can effectively be eliminated when members of the public in one location, typically the usual location of a public body’s meetings, can observe the member or members who participate from a remote location. Meetings have validly been held by means of videoconferencing with members at their second homes in Florida or Arizona, while on vacation in Europe, or when a member remains at his or her residence due to an injury.
From my perspective, there is a distinction between the situation in which all or a majority of the members of a public body seek to meet in a restaurant, and the case in which one member seeks to participate while in Florida, Arizona, Europe, his or her home, or perhaps at an airport. When the entirety of a public body meets in a restaurant, if a member of the public wants to attend, that person has no choice but to do so at that location. Again, in that circumstance, there is an expectation or an obligation to pay for food or service of some sort. That creates a barrier that is, in my view, inconsistent with the intent of the OML. The great majority of meetings are held in a government facility, i.e., a town hall or a county office building, and the reality is that most people interested in attending will do so at the public body’s usual meeting location. That one or perhaps two members might be participating from remote locations is generally of little significance when members of the public can attend at the usual, primary location.
In the case of the Planning Commission, the calendar on the County’s website indicates that its meetings, and those of its committees, are routinely held at a county facility in Hauppauge. Is there a reasonable likelihood that those interested in the business of the Suffolk County Planning Commission would prefer to attend with the member at the airport rather than at its usual location? In my opinion, it is less than likely that traveling to the airport and paying for parking, which appears to be the primary basis for objecting to a member’s participation there, would be the preference of a member of the public. Most, if not all, certainly would prefer to attend in Hauppauge.
During one of our conversations, you informed me that a member of the Commission will likely attend the upcoming meeting via videoconferencing from a location on Shelter Island. To reach Shelter Island, the public must pay to take a ferry, and yet, I am unaware of any objection to that member’s participation from the Island. From my perspective, it would be no more unreasonable for a member to participate from Kennedy Airport than it would be to do so from Shelter Island. So long as the public is permitted to attend at any location at which a member participates and can observe the members wherever they may be, I believe that the members may participate and be counted for purposes of attaining a quorum and for voting, and that a meeting may validly be held.
In an effort to resolve the matter, copies of this opinion will be sent to Mr. Brown and Ms. Smith.
I hope that I have been of assistance.