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The novel coronavirus (COVID-19) has changed the landscape for individuals and businesses. Townships are no different. Daily practices—whether personal or professional—are disrupted due to the widespread impact of COVID-19. Government directives from the Governor of Michigan and state and federal agency guidelines are treating municipal entities differently, however, as essential local operations and activities that sustain and protect life must continue despite the March 24, 2020 Executive Order mandating individuals shelter in place. Few were prepared for the expediency in which a state-wide “shutdown” would occur. Numerous local government concerns have arisen in the past few days on how to effectively hold public meetings and public hearings. This E-Letter provides practical advice on how Townships can continue to hold public meetings and public hearings with public participation.

CONSIDERATIONS FOR PUBLIC MEETINGS AND PUBLIC HEARINGS

On March 18, 2020, Governor Whitmer issued Executive Order 2020-15, addressing numerous concerns regarding public meetings held during the spread of COVID-19. The Governor’s Executive Order temporarily authorizes electronic and telephonic meetings—allowing remote participation in both public meetings and hearings. The Executive Order regarding public meetings has the following important takeaways:

1. The Executive Order applies until April 15, 2020 at 11:59 p.m. (but watch for updates).
2. A public body may meet remotely, including by telephone or video conferencing. Previous law held that a telephone conference meeting was allowed. Goode v Dept of Soc Services, 143 Mich App 756, 759; 373 NW2d 210 (1985). But the Attorney General preferred video meetings “because the representatives and any members of the public attending the meeting through interactive television will be seen as well as heard.” Both are now allowed.
3. The members of the public body and the general public must be able to participate in two-way communication. The public body must allow public participation in such a way that the general public can hear the public body and the public body can also hear the general public.
4. The public body cannot require registration as a condition of participating in the meeting.
5. Any public body with a website presence must provide notice of the meeting on its website.
6. A notice of a meeting being held electronically must include:

•       an explanation as to why the meeting is held electronically;
•       instructions for connecting to the meeting;
•       instructions for participating in the meeting, and
•       procedures for how persons with disabilities participate.

Even though the Governor has authorized electronic meetings, they can pose technical and logistical challenges. There also is no one-size-fits-all approach to holding electronic or telephonic public meetings and hearings. Electronic video meetings with public participation may have some special challenges or even drawbacks for rural communities:

1. Lack of widespread internet connections or high-speed internet connections effectively limits the ability for two-way video conferencing among public body members and the public.
2. Lack of laptops with sufficient cameras, microphones, and data connections can impede the connection between the entire public body and public members.
3. Lack of familiarity with or experience with electronic meetings can create numerous issues. Admittedly, none of the software companies that are most used provide an intuitive user interface that creates a one-click option to establish electronic meetings.

There are three practical scenarios that any Township can choose and implement for public meetings and public hearings during the COVID-19 pandemic:

1. Hold an electronic meeting for all public body members and public participants,
2. Hold a telephone conference call for all public body members and public participants, and
3. Hold a hybrid meeting with the minimal amount of public body members or staff necessary to carrying out the meeting and otherwise require all others to participate through an electronic audio/video conference or telephone conference call.

We note that the third scenario used should not be a first choice for any Township and should only be used if some particular circumstance, such as the technology limitations discussed above, hinder holding an electronic meeting (audio or video) or a telephone conference call. This is because Executive Order 2020-21 places specific limits on in-person meetings, including only gathering when necessary. Since Executive Order 2020-15 authorizes electronic meetings or telephone conference calls, Townships should make best efforts to meet without assembling in-person.

Once the Township decides the most suitable scenario, the Township must choose an appropriate platform or service. There are two categories of service: (i) a conference call service, and (ii) an electronic conference service with video and telephone capability. Many telephone conference and software platforms are available, such as UberConference, FreeConferenceCall, Zoom, Microsoft Teams and Microsoft Stream, GoToMeeting, Google Hangouts, and BlueJeans. The Michigan Townships Association has amassed helpful resources and information about these services, available at this link: https://www.michigantownships.org/downloads/teleconferencing_resources.pdf. Michigan Municipal League has two webinars with slides available at these links:

• http://blogs.mml.org/wp/coronavirus/files/2020/03/Covid-19-Remote-Demo-reduced-size.pdf
• http://blogs.mml.org/wp/coronavirus/files/2020/03/Covid-19-Remote-Public-Meeting-Participation-Presentation-MML-FINAL-reduced-size.pdf

PRACTICAL TIPS FOR REMOTE PUBLIC MEETINGS AND PUBLIC HEARINGS

Once your Township chooses one of the options, consider these practical tips:​

1. Township Board members should accept that there will be certain unknowns as we enter a new frontier in providing public services. Remain patient and be flexible.
2. Townships should decide whether they intend to obtain a local phone number or toll-free number in advance of sending the meeting notice. Each conferencing service has certain delays in making those numbers available for the public notice of meetings and hearings.
3. Township Board members should evaluate their individual computer hardware for electronic video conferencing. Test the clarity and ability to participate in the meeting. Some systems need auxiliary microphones or webcams. Most such devices operate through USB plugs.
4. If a Township Board must meet in part or in whole as a “hybrid” meeting with Board members attending in person and other participants via electronic or telephonic participation, Townships need to consider appropriate audio and visual needs. We recommend that one in-person attendee act as the host of the electronic meeting. That individual’s computer would best serve the public members participating electronically or by telephone by using an add-on omni-directional microphone and a widescreen webcam. Such devices are readily available from retailers at prices between $25 to $100. These devices ensure that the public can readily hear and view the limited Board members who must be physically present due to the circumstances.
5. Each platform has varying pricing options, most based on number of participants. Townships will want to ensure that the package chosen is capable to facilitate a remote public meeting for the number of public members who wish to join.
6. You should consider testing several times in advance of the meeting to ensure the process will run smoothly and all technology is working.
7. Provide an agenda of the meeting and any needed written materials on your website.
8. Limit your agenda to only essential functions and postpone matters that need not be decided during this time until there is greater clarification on COVID-19 and how containment will be addressed in the coming weeks.
9. Make it clear at the beginning of the meeting when the appropriate time is for public comment and then lay out the process for taking public comment.
10. Be aware of the lighting and the background for video conferencing. Also be aware of any at-home background noise and ask participants to mute their phones except when speaking.

This is a rapidly changing and evolving situation that our state and nation are currently dealing with. For additional questions or concerns regarding the Governor’s executive orders and the impact on Townships, you can contact one of our attorneys for assistance.

— Christopher S. Patterson & Brittany M. Nichol

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

Copyright © 2020 Fahey Schultz Burzych Rhodes PLC