Public Access Opinion 20-007

Public Access to Contemporaneous Discussion During Remote Meeting

Open Meetings Act - OMA
Case: Public Access Opinion 20-007
Date: Tuesday, November 24, 2020

The PAC held that the Board of Trustees (Board) of the Village of Roanoke violated OMA during a remotely held meeting on September 8, 2020 when it muted a discussion of public business.
On September 8, 2020, the Board held a remote meeting via Zoom. Two days later, a member of the public submitted a Request for Review with the PAC, asserting that the Board President had asked another Board member to mute all microphones during a discussion with the Roanoke Village Ambulance Chief and that at this time, the Board did not announce it was entering closed session or otherwise provide an explanation for why all microphones were muted.
The PAC construed this as an allegation that the Board violated Sections 2(a) and 7(e)(4) of OMA. Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless a specific exception applies. Section 7(e) of OMA permits public bodies to hold a remote meeting during a public health emergency (such as the current COVID-19 pandemic), and Section 7(e)(4) requires that when such a remote meeting is held, the public body must “allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or web-based link.”
The PAC requested that the Board explain how the public was allowed to connect to the September 8, 2020 remote meeting, and to provide copies of the agenda, minutes, and verbatim recording of it. The Board responded that it complied with Section 7(e) of OMA by livestreaming the meeting on Zoom, which allowed for public attendance and participation, but acknowledged that the meeting livestream was muted for approximately one minute. The Board explained that this one minute was essentially a “sidebar” between the Mayor and Village Clerk regarding the appropriateness of discussing a personnel matter in open session or closed session. The Board asserted this one minute “sidebar” did not violate Section 7(e) because it “is not uncommon for sidebars to occur during a public meeting to clarify a matter of procedure” but assured the PAC that it would not mute any future sidebars. 
The PAC concluded that Section 7(e)(4) “expressly and unambiguously requires that members of the public be able to contemporaneously hear all open session discussion” and it does not provide an exception for a “sidebar.” The PAC held that because members of the public could not contemporaneously hear the one minute muted discussion, the Board violated Section 7(e)(4) of OMA. To remedy this violation, the PAC directed the Board to make publicly available the complete verbatim record of the open session portion of the September 8, 2020 meeting.  
This opinion is binding only to the parties involved and may be appealed pursuant to State law.