ALBANY — The state Senate’s Ethics Committee will hold a “hybrid” meeting on Monday, with participants attending both in-person and via videoconferencing.
It’s a new experiment that foreshadows a looming debate over just how normal the new normal will look for public bodies. As the pandemic draws to a close, officials will need to decide how to balance the clear benefits of an increasingly online government with the loss of transparency brought about by the establishment of a Zoomocracy in which government officials hand down decrees from undisclosed locations.
Anything resembling a traditional town meeting was replaced last year by soulless boxes on computer monitors, adding physical distance between people and their government and making it easier for elected officials to dodge unwanted interactions with protesters, the press, and the general public. But that shift has also made government more accessible for members of the public who might not be able to participate in traditional meetings because of factors like scheduling or physical disabilities.
“Balancing those different needs is going to be something that the law will need to be updated to reflect,” said Reinvent Albany’s Rachael Fauss. “Both are useful and important in different ways.”
The Senate’s Monday meeting was originally advertised as being held over Zoom, with no opportunity for members of the public to physically attend. But that would have almost certainly been a violation of the state’s Open Meetings Law.
Statute written more than two decades ago says that any “public body that uses videoconferencing to conduct its meetings shall provide an opportunity for the public to attend, listen and observe at any site at which a member participates.”
That language was suspended by Gov. Andrew Cuomo last spring as he sought to reduce in-person gatherings, and state and local governmental bodies began to hold most of their meetings in cyberspace. But Cuomo ended the state of emergency two weeks ago, and all of his suspensions of law ended with it.
“The executive order that permitted fully virtual meeting has been rescinded,” said Kristin O’Neill, assistant director of the Committee on Open Government, the entity within the Department of State that aims to ensure state and local governmental bodies comply with transparency laws.
Except in the limited number of scenarios in which executive sessions are allowed, state and local governmental bodies now must return to the old way of doing business. “If they have a quorum present, then it’s a meeting of a public body that’s required to comply with the Open Meetings Law, which means opening it up to the public,” O’Neill said.
The Senate’s hearing in Albany on Monday was characterized as a hybrid between remote and in-person by Ethics Committee Chair Alessandra Biaggi (D-Westchester).
“I will be in person, and then people will be able to testify remotely, and any members who are not part of the Ethics Committee can also be remote,” she said. Assuming a quorum of the committee participates, then each of these members will need to be physically present.
At least some members of the public who are speaking were given the option to do so in person, though they still have the option of doing so via Zoom, an option that could make it easier for people like the ethics chairs of some other states who were invited to testify.
While that may seem like a convoluted way of running a meeting, there’s a chance it could become a model while legislators figure out how to balance pre-pandemic transparency standards with the perks of being online.
There are clear benefits to mandating that the public can be in the same room as deliberating decision-makers. Attendees can read officials’ body language and see if they’re actually paying attention. Participants can strike up conversations with others, both those willing to talk — perhaps two activists will meet in the hallway and find a way to join efforts — and those who are often less eager to do so.
“It’s important for public bodies to be meeting in person so journalists can ask them questions,” said the New York News Publishers Association’s Diane Kennedy.
The shift to virtual meetings has increased the power of government leaders to control debate. In one February committee meeting, a Senate Republican had his microphone turned off as he tried to force a vote on subpoenaing the governor. The closure of the Capitol as lawmakers relocated to the internet meant that lobbyists and protesters had a much more difficult time exercising their First Amendment rights; the only legislators they were able to talk to were often those already sympathetic to what they had to say.
The propriety of a member continuing to speak after they’re found to be out of order, partisans booing the opposition during a floor debate, or an activist risking arrest by shouting during proceedings, is obviously debatable on a case-by-case basis. But the disruption of government meetings has been an option for those who feel they have no other way to make their voices heard by overbearing majorities since antiquity, and it’s one that’s at risk of being unceremoniously eradicated by the omnipotence of the mute button.
Even the presence of well-behaved attendees can be seen as an important part of democracy, more so than the tickers that show how many anonymous individuals watched a video on YouTube.
“There is a value in allowing members of the public into a meeting room, because I think it helps inform public officials’ views of how much interest there is in a topic,” Kennedy said. When members of “a local zoning board or town board [see] 65 people in the audience, that’s sort of a form of public input.”
But there have also been some clear benefits coming from the rise of virtual meetings.
“The Open Meetings Law is about public participation and access to our government,” said the NYS Conference of Mayors’ Peter Baynes. “We had some members of our organization who felt that the use of remote meetings actually increased the level of public participation in their meetings, and felt that they should have that option down the road.”
At least nine legislators have recently introduced bills to change the Open Meetings Law for a post-pandemic world, including Sen. Jeremy Cooney (D-Rochester). His bill would give governments the option to conduct their meetings online, so long as they post the videos on their websites and give members of the public the chance to watch the broadcast from a public location.
Cooney recounted his experience watching meetings like those held by the Brighton Town Board and Rochester City Council over the past year: “There were more people watching … than there would be butts in chairs in a town hall. So we saw that people were actually learning more about how their government was working, how decisions were being made, how taxpayer dollars were being allocated. They were sharing links on social media or by text to other people so they could see what was happening.”
“It’s not easy during a snowstorm to get down to Rochester City Hall,” he noted. “This allows more of our citizens to be able to participate.”
There’s a long list of people who might participate in an online meeting but not attend in person. Parents of newborns, for example, could be shut out of their town government if opining on a proposal required spending several evening hours sitting in a municipal building. Fauss pointed to the MTA’s paratransit program.
“You’ve got Access-A-Ride, and the disability community brings a lot of issues to the MTA board,” she said. “Not having to go in person to provide testimony is in some ways beneficial.”
But Cuomo’s emergency order is now ended, and most governmental bodies are returning to in-person meetings.
“It’s clear for our people that their ability to do things virtually and remotely, they no longer have, except for the limited authority that was in the law previously,” said Baynes.
Most, but not all. One agency, for example, is largely exempted from the Open Meetings Law. It held a meeting the week after the emergency ended in which participants videconferenced in from at least 23 locations. That was the Joint Commission on Public Ethics, which will be the focus of much of Biaggi’s attention on Monday.