WFCA
The following guidance and information was prepared by Snure Law Office, PSC. in response to the Governor’s March 24, 2020 Proclamation regarding the Open Public Meetings Act and Open Public Records Act. The Guidance is not intended to provide legal advice. Please consult legal counsel for advice about specific questions.
On March 24, 2020, the Governor issued the attached Proclamation affecting how you hold Open Public Meetings through April 23, 2020.
1. Effective Immediately you are prohibited from holding in person public meetings.
2. You are allowed to hold public meetings provided the public and the commissioners can attend remotely in a manner where all attendees can hear and be heard. This can be accomplished via phone, or a web based conferencing app such as zoom. The attached proclamation also provides some resources. I note that this may require a staff person to be present at a specific location to manage the remote attendance and that is okay but members of the Board, public and other staff members not managing the IT side of things should not be physically present.
3. The public does not have the right to participate in Open Public Meetings only the right to observe. Accordingly, your remote attendance technology is not required to allow for public comment or participation.
4. During such meetings you are restricted to taking action on matters that are "necessary and routine or are matters necessary to respond to the COVID-19 outbreak and the current public health emergency.” I note the term action includes discussion so the intent of the Proclamation is that meetings be short and efficient and restricted to necessary business.
5. The governor’s office has clarified that that each governing body has the discretion to determine what is necessary and routine and is not, at this time, attempting to issue any additional guidance on that issue. In my opinion, routine would include minute approvals, voucher approvals correspondence reports, chief reports etc. Necessary would include voucher approvals and any decision that if not taken prior to April 23, 2020 would have negative impacts on the District or the taxpayers. If the matter involves a decision that can be postponed until after April 23, 2020 then I do not believe it would be considered necessary. Obviously each action has to be considered based on the facts that you are faced with.
6. If you hold special meetings you still need to post notices on your website (if you have a website) and deliver to commissioners and any news media that have requested meeting notices. You do not have to post at the physical location of where you normally hold your meetings (although you can). You will likely want to include instructions on how to remotely access your meetings in your meeting notices.
7. Obtaining Signatures. As long as you document in your minutes that the Board took action at the open public meeting physical signatures on the minutes and or resolutions can be obtained after the fact, either at a subsequent meeting when physical presence is allowed, or by circulating the documents for signature after the fact. The key is voting in an open public meeting, the signatures are not critical to the effectiveness of an action taken at a meeting.
8. State law allows the Board to establish a process under which vouchers can be approved and paid before being reviewed by the Board of Commissioners. This process requires a resolution and strict compliance with the underlying statute. If you do not have such a resolution in place, contact your legal counsel and they should be able to provide an appropriate resolution. Having such a process would enable you to limit the number of meetings during this time period.
Public Record Act Impacts of Governor’s Proclamation. This Proclamation is also set to expire on April 23, 2020.
1. The Governor has waived the five business day response requirement. If you receive a public record request you may, if necessary, provide your initial response outside of five business days. If you can provide a response within five business days without impacting your operations, I recommend that you do so but if you can’t then do so as soon as reasonably practical.
2. You are not required to accept public records request in person so this supports closing your publicly accessible spaces to the public during this emergency.
3. You are not required to allow individuals to inspect records during this time period.
4. Although not directly addressed by the governor, the Covid-19 impacts are a consideration that can be taken into consideration in determining the time frame your provide requestors for complying with a request. Each District or RFA will have different impacts on their ability to produce records during this time frame, but if, for example, your record custodian is being required to work from home, or is assigned to emergency response duties those facts will justify additional time for responding to a request.