New Jersey Law

New Emergency Regulations Promulgated for Remote Public Meetings Held During COVID 19

Due to the COVID-19 pandemic, local public bodies, which generally includes the legislative and administrative authorities that govern and oversee municipal affairs throughout New Jersey, have been forced to hold their meetings remotely. Public meeting guidelines have recently been promulgated by the Director of the New Jersey Division of Local Government in accordance with Section 8 of the newly enacted P.L. 2020, c. 34, and codified as N.J.A.C. 5:39- 1.1. through 1.7. The guidelines aim to ensure that local public bodies continue to conduct official business in an open, safe, and transparent manner during a declared emergency that prohibits physical attendance by members of the public. Many of the guidelines are consistent with prior practices regarding meeting notices and public participation; however, the regulations attempt to provide greater clarity as to procedures required for remote meetings.

If the local public body conducts an in-person meeting, members of the public must be afforded the opportunity to attend the meeting in person as had been usual. If a local public body cannot meet in person at their regularly designated meeting location because of emergency restrictions, the local public body is required to hold their meetings through other means to ensure adequate, safe, and transparent access to the public. The local public body may either hold the in-person meeting at another location with adequate socially-distanced capacity to safely allow for the expected public attendance, hold the public meeting as a remote public meeting, or hold as a combined in-person and remote meeting. Remote public meetings must afford the public the opportunity to participate in the meeting by audio and video, and the selected technological platform used for streaming remote public meetings must be able to accommodate the likely potential increase in public attendance.

A local public body holding a remote public meeting must continue to allow members of the public to make public comment by audio or by audio and video. The public’s participation in remote meetings may be regulated by the local public body through an individual muting function. If a member of the public becomes disruptive during a remote public meeting, the member of the local public body charged with running the remote meeting may remove the member of the public from the meeting. A local public body entering an executive or closed session shall ensure that audio or video of the session cannot be accessed except by those individuals that are participating in the session. The local public body is required to adopt, by resolution, standard procedures and requirements for public comment made during the meeting along with any written comments submitted in advance of the meeting.

Where sworn testimony is required during a remote meeting, such as at a land use board, the testimony, including any cross examination, is required to be streamed by video as well as audio. Any presentations or documents that would be viewed by or made available to members of the public during an in-person public meeting is required to either be made visible on a video broadcast of the remote public meeting or made available on the website of the local public body. Before holding a public hearing on an application for development during a remote public meeting, a land use board must determine whether electronic communication technology can sufficiently facilitate due process of the applicant and any interested party. This includes the ability to examine exhibits, transcribe testimony, cross-examine witnesses, as well as the ability of the public to comment upon the application. The regulations require applicants must submit all exhibits at least two (2) days prior to the remote public hearing before a land use board. It is the applicant’s responsibility to ensure that all exhibits are converted to an electronic format that can be viewed by the public through the Internet.

In order for notice to be considered adequate in the context of a remote public meeting it must include the time, date, location, technological streaming platform, and agenda of the meeting. The notice is required to include clear and concise instructions for accessing the remote public meeting, including how to make public comment, and where relevant documents will be made available for the public to view. Notice of a remote public meeting are to be transmitted to at least two newspapers, posted on the door of the main public entrance to the building where the public would routinely attend in-person meetings, as well as on the door of any designated handicap accessible entrances to said building, and on the Internet website of the local public body. If a previously scheduled in person meeting that allowed for public attendance is changed to a remote meeting, the local public body is required to transmit notice of the remote public meeting change at least 48 hours in advance of the scheduled meeting to the newspapers and provide electronic notice to the public if such change is not otherwise reflected in the revised annual notice. In such instances the local public body shall limit public business discussed or acted upon to matters necessary for the continuing operation of government and to decisions by the local public body due to imminent time constraints.

If the local public body expects to conduct remote public meetings for a series of regularly scheduled meetings advertised in its annual notice, and if the annual notice lists those meetings as in-person, the annual notice is required to be revised to contain clear and concise procedures and guidelines for accessing those remote public meetings. At the beginning of every remote public meeting of a local public body, the person presiding shall announce publicly for inclusion in the meeting minutes the time, place, and manner in which notice was provided.

For more information on the new emergency regulations for remote public meetings, please contact Jeffrey B. Lehrer, Esq. at ext. 180 or Joseph Sordillo, Esq. at ext. 218.