Public Bodies Representation - AG Updated Opinion on Open Meetings Laws
Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.
On March 16, 2020, Governor John Bel Edwards issued Proclamation Number JBE 2020-30 to provide additional measures to respond to the Covid-19 public health emergency. Therein, at Section 4, in an effort to work around Louisiana Open Meetings Law (La. R.S. 42:11, et seq.), he provided that all state agencies, boards and commissions, and local political subdivisions of the state “shall provide for attendance at essential governmental meetings via teleconference or video conference and such attendance shall be allowed during the pendency of this emergency”. Ordinarily, physical presence is required for meetings of a public body and votes are to be made by live voice. La. R.S. 42:14(C). The Proclamation further provided that all efforts shall be made to provide for observation and input by members of the public, and that the Proclamation did not affect notice requirements. On that same day, the Louisiana Attorney General issued a Memorandum stating that normal quorum and voting requirements were still in effect as set forth in Open Meetings Law, thus requiring the physical presence of public body members, in conflict with the Governor’s Proclamation.
However, on March 19, 2020, the Attorney General issued another Memorandum in order to provide additional guidance to public bodies in light of the Covid-19 public health emergency. The latest Memorandum opines that although quorum requirements are still applicable, in light of Proclamation Number JBE 2020-30, a public body may conduct its meetings by telephone or video conference. Accordingly, there is no longer a conflict as to whether a public body may hold essential governmental meetings by teleconference or video conference. As to notice, the Attorney General stated that in cases of an extraordinary emergency, although written notice is not required, the public body should give notice of the meeting as it deems appropriate and circumstances permit. La. R.S. 42:19(A)(1)(b)(iv). However, the Proclamation requires that before any meeting is conducted by teleconference/video conference, the public body shall first provide a written certification that it will otherwise be unable to operate due to quorum requirements, which certification must be posted at the same time and in the same manner as the agenda for the meeting.
In summary, during the public health emergency:
- Public bodies may meet via teleconference or video conference. Before meeting, it must provide written certification that it will otherwise be unable to operate due to quorum requirements, which certification must be posted at the same time and in the same manner as the agenda for the meeting.
- Quorum rules remain in effect. La. R.S. 42:13(A)(4).
- If meeting by teleconference or video conference, efforts must be made to provide for observation and input of the public.
- The public body may hold an executive session in the event of an extraordinary emergency. La. R.S. 42:17(A)(5). The decision to enter executive session requires an formative vote of 2/3 of its members present, and no final or binding action may be taken during executive session. La. R.S. 42:16.
- Although a public comment period is still required under La. R.S. 42:14(D), reasonable rules and restrictions regarding such comment may be implemented.