Current as of March 25, 2020
By Attorney Jenna Bishop
Despite the encouragement of public health officials, including the U.S. Center for Disease Control, to practice “social distancing” and limit large gatherings during the COVID-19 pandemic, governmental bodies in Iowa are still required by state law to hold their meetings “open to the public,” as required by Code of Iowa Chapter 21. However, Governor Reynolds has issued several emergency declarations in response to the COVID-19 outbreak, including her March 20, 2020 proclamation that, among other things, was intended to facilitate holding public meetings and hearings by electronic means at least until April 16, 2020.
Iowa Code Chapter 21 establishes the requirement that meetings of governmental bodies such as city councils, county boards of supervisors and school boards be held as open meetings. Normally, meetings are required to be held “at a place reasonably accessible to the public.” However, Section 21.4(1)(b) provides an exception to this requirement when “for good cause” holding the meeting at a publicly accessible place is “impossible or impracticable.”
When an in-person meeting is “impossible or impractical,” Section 21.8 permits a governmental body to conduct a meeting by electronic means, provided the following three requirements are met.
1. Public access to the conversation of the meeting must be provided, “to the extent reasonably possible.”
When considering public accessibility needs, all effort should be made to provide at least audible access to the conversation. For example, if conducting the meeting by conference call, the public should be provided with call-in information that would allow an individual to call in and listen to the meeting discussion. Alternatively, a governmental body might provide access to a livestream video of its meeting on its website.
When selecting an electronic format for a meeting, it is important to consider how reliable its broadcast will be, and how easy it will be for members of the public to access. For example, a video livestreamed over the Internet may not be easily accessible for an individual lacking high-speed Internet in his or her home. Ample advance notice of the format of the meeting should be provided to allow an opportunity for members of the public with disabilities or any relevant situational access barriers to request accommodations.
If the governmental body is legally mandated to hold a “public hearing” before taking a particular action, then the type of electronic access will require that the public be able to provide comments during the meeting. Under these circumstances, the ability to view a livestream video may not be sufficient; instead, the use of a call-in phone line or interactive website may be necessary.
2. The notice of the meeting must indicate the place of the meeting as “the place from which the communication originates or where public access is provided to the conversation.”
For example, if the conference call was going to be initiated from a speakerphone sitting in a city’s council chambers, even if no council members were going to be present there, the council chambers would be identified as the place of the meeting. If the meeting is going to be accessed by all participants calling into a call-in number, then the call-in information should be provided in the notice of the meeting. If a livestream video of the meeting is the method of electronic meeting used, a description of the location of the room in which the video screen streaming the meeting will be set up should be identified as the place where public access will be provided.
The notice must include any remote access information that may be used by the public to participate in the meeting, for example, a call-in number and passcode for a conference call, or directions to a website address at which the meeting can be livestreamed.
3. Meeting minutes still must be kept and must include a statement explaining why an in-person meeting was impossible or impractical.
Meeting minutes should be taken as they normally would, including the identity of speakers and members of the governing body participating in any discussion item or public hearing on the agenda. In addition, any documents that are being considered or referenced as part of discussions or deliberations should be verbally identified during the meeting. The minutes should include the statement explaining why an in-person meeting was impossible or impractical.
For example, at the start of the meeting, the presiding officer might give a statement of the reasons why the meeting was being held electronically rather than in-person, e.g., due to heightened public health risks.
Impact on In-Person Meetings
To best ensure that all members of the public have access to a meeting being held electronically, you may want to consider establishing a physical public meeting place (e.g., council chambers), where the electronic format of the meeting will be broadcast or made directly accessible to members of the public, unless such an approach is not “reasonably possible” due to directives from the state or federal government.
Pursuant to Governor Reynolds’ March 20, 2020 emergency proclamation, until at least April 16, 2020, governmental bodies may limit the number of people present at in-person meetings, provided an electronic method for public participation such as a conference call line or website is provided for the meeting. If no alternative method of public access is provided, the public cannot be prohibited from attending the meeting. If this results in more than 10 people being present for the meeting, the governmental body should do what it can to create additional separation between those in attendance. Chairs can be moved, and the room can be rearranged to allow for social distancing.
Please note that cities must continue to comply with all other requirements of Iowa Code Chapter 21 related to public meetings, absent a directive from the state or federal government that may suspend or waive certain requirements. These other requirements of Chapter 21 include:
- Providing posted notice of meetings at least 24 hours in advance unless an emergency meeting must be held on less than 24 hours’ notice, in which case as much notice “as is reasonably possible” must be given; and
- The limitations regarding holding closed sessions.
Given the rapidly evolving recommendations for responding to COVID-19, the above considerations are intended to be general guidance based on current information (as of the date this article goes to publication) and current Iowa law.
For guidance on any specific situations or facts, please contact one of the members of Ahlers & Cooney, P.C.’s Government Law Practice Area.