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New DCA issued OPMA Regulations to Consider Before Your Next Meeting

Coronavirus Outbreak. Lockdown and school closures. School boy with face mask watching online education classes feeling bored and depressed at home. COVID-19 pandemic forces children online learning.

To Our School Board Community:

We have been trying to anticipate and quickly respond to your questions during this time, given the unprecedented challenges presented to our Boards related to COVID-19 school closures. In March, the New Jersey Legislature amended the Open Public Meetings Act (“OPMA”), to include various relaxations as a result of COVID-19. The amendment included a provision allowing for the adoption of regulations by the Division of Community Affairs. Said regulations were recently released, and a complete copy of same can be found here.

Some regulations worth noting are the following:

  • If there are guidelines in place restricting room capacities to an amount less than the amount of people reasonably expected at that Board Meeting, you can hold a public meeting at another location with adequate capacity for the reasonably expected attendance by the public, or you can hold the public meeting as a hybrid in-person and remote public meeting.
  • You cannot hold an in-person public meeting if the room capacity does not permit any member of the public to attend.
  • You can broadcast the audio and/or video of the meeting, and take remote public comment during the Board Meeting that the public is allowed to physically attend.
  • If you’re going to have a remote Board Meeting the technology used to access that Board Meeting by the public must be free to the public, i.e. not a subscription based platform.
  • Participation capacity on the selected platform should be consistent with the reasonable expectation of the public body for public meeting of the type being held, and shall not be limited to fewer than 50 public participants.
  • You can have remote meetings that are audio only, teleconferencing, and/or video and audio, and live-stream. 
  • If an electronic communications platform or internet accessible technology is being utilized for a remote meeting a telephonic conference line has to be provided to allow members of the public to dial in by telephone for the purpose of listening in, and providing public comment as otherwise required by law.
  • A local Board Meeting held in-person shall not prohibit members of the public from attending in-person.
  • In advance of the remote public meeting, the School Board shall allow public comments to be submitted to the official responsible for creating the meeting agenda, by electronic mail and in written letter form, by a reasonable deadline.
  • The School Board shall have the discretion to accept text-based public comment received during a remote public meeting (i.e. zoom chat) held through an electronic communications platform or internet-accessible technology.
  • Public comments submitted before the remote public meeting, through electronic mail, or by written letter shall be read aloud and addressed during the remote public meeting in a manner audible to all meeting participants and the public.
  • If the local public body imposes a reasonable time limit on public comments, where permitted by law, the same limits can be placed on the reading of written comments.
  • Each comment shall be read from the beginning, until the time limit is reached.
  • A local public body may pass over duplicate written comments; however, each duplicate comment shall be noted for the record with the content summarized.  If you are going to do this for duplicate comments, you must do it for all duplicate comments.
  • Any electronic communications technology used by the public local body must have a mute function so that whoever is running the meeting can mute all participants. The public body must also be able to regulate participation by individuals of the public.
  • A telephonic audio conference call line must have a queuing or similar function for regulating public comment.
  • The local public body shall adopt by resolution standard procedures and requirements for public comment made during a remote public meeting as well as for public comments submitted in writing ahead of the remote public meeting.
  • Such procedures and requirements shall include standards of conduct to be followed by members of the public when making comment.
  • The procedures and requirements for making public comment, along with an explanation of the audio muting function of the electronic communications platform being used, shall be announced at the beginning of the remote public meeting.
  • The following procedures shall be incorporated:

            1) The local public body shall facilitate a dialogue with the commenter to the extent permitted by the electronic communications technology.

            2) If a member of the public becomes disruptive during a remote public meeting, including during any period for public comment, the member of the local public body charged with running the remote public meeting shall mute or continue muting, or direct appropriate staff to mute or continue muting, the disruptive member of the public and warn that continued disruption may result in their being prevented from speaking during the remote public meeting or removed from the remote public meeting. Disruptive conduct includes sustained inappropriate behaviors such as, but not necessarily limited to, shouting, interruption, and use of profanity.

            3) A member of the public who continues to act in a disruptive manner after receiving an initial warning may be muted while other members of the public are allowed to proceed with their questions or comments. If time permits, the disruptive individual shall be allowed to speak after all other members of the public have been given the opportunity to make comment. Should the person remain disruptive, the individual may be muted or kept on mute for the remainder of the remote public meeting, or removed from the remote public meeting.

  • Please check with your IT departments to make sure that your electronic communication platforms and internet-accessible technologies meet the requirements listed below:

— shall be hosted on FedRAMP Moderate Impact Level Authorized dedicated servers or in a FedRAMP Moderate Impact Level Authorized Cloud, unless the host of the dedicated servers or cloud provides annual evidence of satisfactory cybersecurity internal controls through a SOC2 audit report. When using cloud services, the technology vendor shall check provider credentials and contracts to ensure FedRAMP Moderate Impact compliance unless annual evidence of satisfactory internal controls is provided through a SOC2 audit report.

  • Adequate notice of a remote public meeting must include, in addition to the content required under N.J.S.A. 10:4-8, clear and concise instructions for accessing the remote public meeting, the means for making public comment, and where relevant documents, if any, will be made available.
  • If you are having a remote public meeting this information must be posted your website as well as your main access door of the building.
  • If during a declared emergency a local public body elects to issue electronic notice of a remote public meeting adequate public notice, as permitted by N.J.S.A. 10:4-9.3, the local public body shall limit public business discussed or effectuated at the meeting to matters:

1) necessary for the continuing operation of government and which relate to the emergency declaration connected with the declared emergency; or

2) requiring decision during the remote public meeting 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, the annual notice shall be revised at least seven days prior to the next regularly scheduled meeting, indicating which meeting(s) will be held as a remote public meeting and shall contain clear and concise instructions for accessing those remote public meetings, the means for making public comment, and where relevant documents, if any, will be made available.
  • If you are changing your meeting from in-person to remote you must issue an electronic communication with all of the relevant information.
  • At the commencement of every remote public meeting of a local public body the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, an accurate statement to the effect that:

            1) both adequate and electronic notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided; or

            2) only electronic notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided, and that discussion and effectuation of public business shall be limited to only those matters:

                 a) necessary for the continuing operation of government and which relate to the applicable emergency declaration; or

                 b) requiring decision during the remote public meeting due to imminent time constraints.

            3) that adequate notice and electronic notice was not provided, in which case such announcement shall state:

                 a) the reason or reasons why the matter or matters discussed are of such urgency and importance as contemplated under N.J.S.A. 10:4-9(b)(1), and the nature of the substantial harm to the public interest likely to result from a delay in the holding of the meeting;

                 b) that the remote public meeting will be limited to discussion of and acting with respect to such matters of urgency and importance;

                 c) the time, place, and manner in which notice of the meeting was provided; and

                 d) either that the need for such meeting could not reasonably have been foreseen at a time when adequate notice and/or electronic notice could have been provided, in which event, such announcement shall specify the reason why such need could not reasonably have been foreseen; or that such need could reasonably have been foreseen at a time when adequate notice and/or electronic notice could have been provided, but such notice was not provided, in which event the announcement shall specify the reason why adequate notice and/or electronic notice was not provided.

Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests.  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.  Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks.

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