Does the Delta Variant Vary the New Rules on Remote Meetings?

With the Delta variant has come new recommendations suggesting that individuals once again wear masks in indoor public settings. We are getting a lot of questions regarding whether this new guidance counts as “an emergency requiring the board to meet by remote means,” such that remote participation is allowed under the new law. Because the current guidance is simply that masks should be worn indoors, and not that public or larger indoor meetings should be avoided, we do not think that the current situation qualifies as an emergency that requires the board to meet by remote means (as prudent as that might be). It is our belief that if the Governor signs a new order limiting in-person gatherings, or even if the CDC guidance is amended to discourage public meetings entirely, this may be enough to constitute an emergency. Only at that time will public bodies and their attorneys be able to assess the situation and determine whether a remote meeting is required, not just prudent.

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.