Justin Silverman
Justin Silverman is the executive director of the New England First Amendment Coalition. The non-profit non-partisan organization is the region’s leading advocate for First Amendment freedoms and the public’s right to know about government. Learn more at nefac.org.
During the early months of COVID-19, governors in New England states issued executive orders allowing municipalities to meet online so long as the public could attend remotely. The democratic benefits of this arrangement quickly became evident. According to a public official quoted in a 2020 study, the changes “made it a lot easier for residents who have other things to do, to be heard. People with family obligations, elder care, or child-care issues.”
The executive orders that prompted these changes, however, have long since expired. New England states have resorted to a patchwork of live streams, short-term remote meeting requirements and, in some cases, reverted back to pre-COVID policies and in-person meetings only.
There’s a better way forward.
Permanent changes need to be made to state laws to require both in-person and remote access to government meetings. People with young children, health issues, disabilities, work commitments or other circumstances that prevent in-person attendance at these meetings are at risk of again being shut out of the democratic process. At the same time, there are benefits to in-person meetings that must continue along with this expanded access.
Now is an ideal time to contact your state representatives and make this need known. Sunshine Week is March 12-18 and is a celebration of open government and freedom of information. The sunshine reference is attributed to U.S. Supreme Court Justice Louis D. Brandeis who famously wrote that “sunlight is said to be the best of disinfectants.” In other words, an informed citizenry is the best check against government corruption. We should use the occasion to demand the permanent changes necessary for all members of the public to effectively engage with the government and stay informed.
The 2020 study — published in the Journal of Civic Information and authored by Jodie Gil and Jonathan L. Wharton — involved nearly 100 municipalities in Connecticut following the state’s COVID-19 emergency orders. It found that the majority of these municipalities experienced the same or increased participation during their public budget deliberations as they had previously. While these towns also experienced learning curves and other unexpected challenges, the authors’ findings reinforce what many of us have come to believe during the last three years: The public is more likely to participate in meetings when given multiple ways to do so.
Massachusetts lawmakers recently recognized this reality with legislation (HD3261/SD2017) that could serve as a model for other states. The bill would apply to all executive branch agencies and municipal bodies subject to the state’s Open Meeting Law.
It phases in over seven years a requirement that they meet in person and also provide remote access and participation, but demands swift compliance by state agencies and elected municipal bodies. Non-elected municipal bodies with logistical or budgetary concerns can apply for hardship waivers.
The legislation even creates a trust fund that will financially support those needing assistance. The waivers, however, are available only until 2030. There must be universal compliance by that time.
While each state has its own local considerations, there’s no reason why other open meeting laws cannot ultimately require hybrid access. (Don’t know what legislation is introduced in your state? Use the legislation trackers at nefac.org/FOIguide.) Remote meeting technology is becoming more prevalent, less expensive and greatly needed by citizens unable to attend in person. At the very least, open meeting laws should be changed to incorporate the following:
— Hybrid Access: The public needs in-person access to government meetings along with the ability to attend and participate remotely. Both forms of access are critical. While remote meetings will make government accessible to those who cannot otherwise attend, citizens still need face-to-face time with their representatives without their commentary being muted or disconnected from a Zoom line.
— Hard Deadline: The ultimate goal is to have all public bodies meeting in a hybrid form. The ease of reaching this goal will vary from one government agency to the next. States should set a clear and hard deadline for all government bodies to comply, taking into consideration challenges such as staffing, funding and logistics.
— Funding: A common argument against hybrid meetings is the cost of the required equipment and technology. While these costs have decreased significantly, they can still impose a burden on small towns with limited funding and staffing. States should earmark funding specifically for the purpose of hybrid meetings and help those municipalities that genuinely need the assistance. Consider it an investment in democracy.
There have been few silver linings to emerge from COVID-19. Remote access to government meetings is one of them. It provides equity and engagement in our democracy that many members of our communities would not otherwise enjoy. We need to change our open meeting laws now to make sure this access is available long after the pandemic has run its course.
At Town Meeting this May, Marblehead voters will have under Article 52 an opportunity to amend the town bylaws to require the Select Board, School Committee, Board of Health, Planning Board, Zoning Board of Appeals, Light Commission, Water & Sewer Commission, Harbors & Water Board, Recreation & Parks Commission and Old & Historic Districts Commission to ensure the use of hybrid meeting platforms or remote platforms for all body members and for the public at all public meetings. The article is sponsored by resident Lynn Nadeau.