As we previously reported, last week the Pennsylvania House of Representatives unanimously passed House Bill 1564 which, among other things, established specific procedures for holding remote meetings. This law would have resolved the inconsistency we previously reported among the various municipal codes, some of which require a physical quorum to be present at a meeting location in order for the Council or Board to conduct municipal business. Specifically, Boroughs and Third-Class Cities must have a physical quorum of council members present at the meeting location in order to conduct municipal business. Unfortunately, after the bill unanimously passed the House, it has stalled at the committee level in the State Senate. It is our understanding that the Local Government Committee of the State Senate, as well as certain administrative agencies like the Office of Open Records, do not feel that this bill is necessary, based upon their interpretation of the Pennsylvania Emergency Management Act to permit municipalities to waive certain formalities following a disaster declaration. Courts are not bound by these interpretations. Therefore, each municipality should request and follow the advice of their municipal solicitor. Caution should be exercised in applying an expansive interpretation of the Emergency Management Act where the Act only permits municipalities to waive formalities in certain specific areas, of which meeting procedure is not one. In the absence of statutory authority, neither the Governor’s disaster declaration, nor the language of the Emergency Management Act, permit a municipality to disregard the requirements of otherwise applicable law.
Complicating this issue is the fact that the Governor’s “shelter in place” order does not make any exception for participating in or attending a municipal meeting, as such action is not “life-sustaining” under the order. Since municipalities must still conduct business and, in fact, by law must meet once per month, it is likely that municipalities will need to meet remotely, without the presence of a physical quorum. We understand the practical necessity of doing so. In the event a future challenge is filed and the Courts do not agree with the expansive interpretation of the Emergency Management Act, our office recommends that a municipality adopt the following best practices if it holds an all remote meeting:
- Only necessary matters should be placed on the agenda for voting.
Payment of bills, hiring of crucial staff, etc. should be the matters which are on the agenda. Anything that can be postponed until the municipality can safely conduct a live, in-person meeting should be re-scheduled.
- Only vote on listed agenda items.
The municipality should not deviate from the items listed in its agenda, which it should make available to the public online prior to the meeting. Since, most likely, the public will not be able to comment on additional agenda items, any items that are considered and approved after the public has had the opportunity to comment run the risk of being declared invalid.
- Ratify all items at the next live meeting.
Since it is questionable whether or not Boroughs and Third-Class Cities can meet remotely without a physical quorum present at the meeting location, it is highly recommended that the governing body ratify all of its decisions at the next live meeting.
- Record and disseminate the meeting information as soon as possible.
As a matter of best practices, it is also recommended that a municipality record the remote meeting and a copy of the recording be placed on the municipality’s website within 24 hours after the conclusion of the meeting. Finally, the municipality should prepare a draft version of the minutes (noting that they would not be finalized until a vote to do so is taken at the next meeting) and place a copy on its website within forty-eight hours of the conclusion of the meeting.
Over the past few days our office has prepared guidance summarizing House Bill 1564, comparing various municipal codes and their requirements on physical quorums, and procedures for holding remote meetings. Our office will continue to monitor the status of House Bill 1564 and we will provide updates if it moves forward. Until then, our office can provide assistance on how best to protect your municipality from any legal challenges that might arise as a result of votes taken during an all remote meeting.