Municipalities to Resume In-Person Public Meetings

After nearly a year and a half of remote proceedings, Maine municipal, county, and school boards will soon be required to reconvene in-person public meetings. On June 21, Governor Mills signed into law L.D. 32, “An Act Regarding Remote Participation in Public Proceedings.” The new law finally authorizes some remote participation in meetings – an issue that was quite divisive in pre-COVID days – but it does put an end to the type of remote meetings we’ve all grown used to.

Because last year’s “omnibus bill” which authorized remote meetings will remain in effect for 30 days after the state of emergency ends on June 30, L.D. 32 (codified at 1 MRS § 403-B) will become the governing law as of July 30, 2021. Per this emergency amendment, members of a public body must be physically present for public proceedings, except when doing so is “not practicable.” The circumstances under which being physically present may not be practicable include: an emergency requiring the body to meet by remote means; illness; absence from the jurisdiction and significant difficulties traveling to attend in person. A body must adopt a written policy governing the conditions upon which its members and members the public may participate by remote means. This policy must provide the public an opportunity to attend by remote methods when members of the body participate in such a way. A body may not limit public attendance at a proceeding solely to remote methods, except in case of emergency.

During hybrid meetings, all votes taken must be taken by roll call vote. Additionally, notice must include information on how the public may access the proceeding using remote methods, as well as identify a location for members of the public to attend in person. The body must make all documents and other materials they consider during the meeting available to the members of the public who attend by remote methods to the same extent they are available to those who attend in person, as long as it does not incur additional costs.

Note that these requirements apply solely to members of the body and public. This does not limit municipal staff or counsel from continuing to participate remotely.

State Issues COVID-19 Guidance Document for Reopening Public and Community Buildings

As part of Phase 2 of the Restarting Maine's Economy initiative, the State yesterday released guidance on safe reopening of municipal and other government buildings. Read the full COVID-19 Prevention Checklist here.

Maine Legislature Passes COVID-19 Omnibus Bill re Public Meetings, Finance, and Other Municipal Concerns

The Maine Legislature last night passed emergency legislation, LD 2167 (referred to as the COVID-19 Omnibus Bill), which addresses many of the concerns being faced by municipalities in this unprecedented situation. Following is our summary of the provisions of this law which impact municipal government:

Public meetings

• During the declared state of emergency, meetings of municipal boards and committees may be conducted remotely by telephone, video, or Internet. The method must be adequate to allow members to hear and speak to one another, and must allow the public to hear what is said.
• Notice must still be provided (we recommend emphasizing web and press announcements during this time, if offices are closed and physical postings are not possible). The notice must include information on how the public may watch and/or participate. Again, remember that you do not need to make provision to accept public comments unless the meeting will include a required public hearing.
• The law does not appear to require that you provide a physical space and phone, terminal, or display where the public can attend in person to watch or listen to the proceedings.
• Votes taken at a remote meeting must be by roll call.

Budget and finance

• Similar to the process for enacting school budgets, the law allows for a municipality that cannot adopt its budget at the customary time to spend according to the prior year’s adopted budget until the current year’s budget can be passed. If these delays continue to the point at which commitment becomes necessary, taxes may also be committed based upon the prior year’s budget.
• During the period of the declared state of emergency and for 30 days after, disbursement warrants may be signed by a majority of the municipal officers with no public meeting required. The implication is that the municipal officers may sign individually with no meeting required.
• If the level of state education subsidy is not finalized before June 1, 2020, the school budget meeting and validation process may be delayed until 30 days after either DOE notifies the school unit of the amount of subsidy or the state of emergency ends. If the budget is delayed under this provision, the school may operate based on the prior year’s budget between July 1 and the date the new budget goes into effect.

Elections

• During calendar year 2020, the municipal officers may postpone a municipal secret ballot election by posting a notice in a conspicuous public location at least two days prior to the election. The notice must either indicate the new date of the election or indicate that the municipal officers will schedule it at a date to be determined. Ballots already printed for that election may be reused for the rescheduled election (despite including the wrong date), and absentee ballots already cast for the election must be held by the clerk and processed on the rescheduled election date.

Employment

• If an employee is laid off as a result of the state of emergency, unemployment benefits paid to him/her will not be charged against the employer’s experience rating.
• Employees will be eligible for unemployment benefits if they are (1) subject to a quarantine or isolation requirement; (2) have been temporarily laid off due to COVID-19 related closures; or (3) are on temporarily leave due to quarantine, isolation, or need to care for dependent family members as a result of COVID-19.

Education

• The Governor and Commissioner of Education may develop a plan to waive compulsory attendance requirements and/or allow remote learning to take the place of in-person instruction requirements.
• The Governor and Commissioner of Education will also implement a plan to continue to provide nutrition services during any period of COVID-19 related school closures.

Other municipal business

• Vehicle registrations, liquor licenses, and dog licenses are deemed extended until 30 days after the end of the state of emergency.
• Vehicle registrants may use the Rapid Renewal program even if their municipality does not already participate.

Municipal COVID-19 Update

We are understandably getting many questions from our municipal clients regarding how to handle public meetings, annual meetings, and public transactions given the Governor’s order prohibiting large gatherings. The other significant area of concern involves questions about how to balance serving the public while protecting your workforce. Several municipalities, including Portland and Augusta, have declared local states of emergency invoking powers only contemplated in times of crisis.

We are expecting that the emergency legislation being considered by the State Legislature tomorrow will include provisions suspending all or some of the FOAA requirements related to public meetings. For now, our best guidance as to how to handle meetings is as follows:

• Postpone non-essential board and committee meetings.
• If a meeting must be held, consider using Facebook Live, YouTube Live, or another streaming service. Remember that the public has the right to view all meetings, but not the right to speak (unless it is an advertised public hearing). For those members of the public who demand to attend in person, reduce risk by spacing out seating and/or providing a secondary room or location where the meeting will be streamed for those who do not have internet access from home.
• Members of boards who are particularly vulnerable due to age or underlying medical conditions may participate in the meeting by phone, Skype, Facetime, etc.. At this time, you should not worry if a quorum or majority of the board is participating remotely.
• (For town meeting towns only) If your annual town meeting falls within the next two months, consider having a special meeting only to make appropriations to fund municipal government as necessary to allow extension of the annual town meeting. Even if your charter requires that the annual meeting be held on a certain date, delay is very unlikely to impact the legality of the meeting whenever it is held. We expect this issue to be addressed by the Legislature.

Employee issues must be dealt with on a case-by case basis with an eye to consistent policies and fair treatment.

We will be in touch tomorrow evening or as soon as possible thereafter with clear, updated guidance following the Legislature’s vote. In the meantime, please do not hesitate to contact us with any questions.

Be well,

Stephen Langsdorf and Kristin Collins

New Governor, New Era for State/Municipal Partnership

Governor Janet T. Mills is being inaugurated today as Maine’s first female Governor. Municipal officials and leaders throughout the state should expect a more positive relationship between the Governor and the State of Maine and local municipal government during this new administration. As everyone is well aware, despite having been the former Mayor of Waterville, Governor Paul LePage had a very testy and unproductive relationship with municipalities throughout his tenure as Governor. He was generally opposed to revenue sharing for municipalities and went out of his way to foist responsibility onto municipalities for programs and the costs of those programs for which the State historically has taken responsibility. Governor Mills, in her interview with the Maine Municipal Association which occurred prior to the election, made it abundantly clear that she welcomes the support and advice of municipalities and fully intends to restore that relationship and stop the process of shunting costs onto local property tax payers. Since Governor Mills worked her way up through the ranks of local and state politics before becoming Attorney General and finally Governor, she has a keen understanding of what local officials go through and will likely be far more sensitive to those concerns than the previous administration.