Back on March 10, 2020, Governor Roy Cooper declared a state of emergency in North Carolina “to coordinate response and protective actions to prevent the spread of COVID-19,” and with that came sweeping changes to public meetings in our state as most public bodies shifted to virtual meetings. These remote meetings remained commonplace – and frankly became the norm – for the next two and a half years. However, on August 15, 2022, Governor Cooper officially ended the Covid-19 state of emergency and public bodies find themselves once again adjusting to a new normal. We are now in a gray area where remote meetings are still permissible during non-emergency times, but they are not subject to the more specific rules that governed those meetings during the state of emergency.
It’s hard to believe that virtual public meetings did not happen frequently before 2020, but there is no specific instruction for remote meetings in our permanent open meetings law, N.C. Gen. Stat. § 143-318.9 et. seq., absent a state of emergency. It’s easy to forget that most of us had never heard of the now-ubiquitous Zoom before March 2020; most discussions regarding remote meetings centered on telephone conference calls.
On its face, our open meetings statute does allow remote meetings by defining “official meeting” as a “gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business.” There is no published case law interpreting this provision or setting parameters or procedures for “electronic” meetings during non-emergency times, but there is nothing prohibiting them either.
What was different during the recently-expired state of emergency is that as of March 2020, North Carolina has a specific statute – N.C. Gen. Stat. § 166A-19.24 – that governs the nuts of bolts of remote meetings, but only during these periods of time. This law only takes effect “upon issuance of a declaration of emergency” and is meant to run concurrently with any state of emergency. It lays out the specific guidelines for remote meetings followed by public bodies and details where and how public bodies and their members can hold and participate in remote meetings. It’s not that remote meetings are disallowed during non-emergency times; rather, remote meetings are allowed but not subject to these specific requirements of N.C. Gen. Stat. § 166A-19.24.
Unless there is another statute or provision prohibiting a certain public body from meeting remotely, our position is that remote meetings are allowed and acceptable under our current open meetings law. If you cover a public body regularly, you should be familiar with its governing charter granted by the general assembly or its enabling statute. If there is no requirement for in-person meetings or hearings to be found, then the public body may continue to meet remotely. Even if there is an in-person requirement, remember that that requirement is likely not binding during any state of emergency due to N.C. Gen. Stat. § 166A-19.24.
So what will public meetings look like going forward during non-emergency times? There seems to be great enthusiasm for remote meetings among members of public bodies and members of the public, so it’s unlikely that that we will return to the pre-pandemic status quo, where remote meetings were rare. Although remote meetings have their drawbacks – it can be argued that something is lost when participants are not in a room together face to face – this option has allowed public officials more flexibility. Advances in virtual meeting technology have enabled more members of the public to attend meetings and engage with public business. In addition, more meetings are being recorded for time-shifted review and archival.
Regardless of whether a meeting is conducted as remote or in-person, it is still allowable – and arguably a best practice – for the public body to stream the meeting live online. Thanks to the last two and a half years, we have seen that robust openness and transparency is still possible when meetings are conducted virtually. It remains to be seen whether at some point, the legislature will make the state of emergency remote meeting guidelines in N.C. Gen. Stat. § 166A-19.24 a permanent part of our open meetings law.
You can reach Mike Tadych, Amanda Martin and Beth Soja at email@example.com if you have additional questions.