On the evening of September 8, the Poughkeepsie Common Council met via Zoom for a regularly scheduled meeting. During the proceedings, which were recorded and shared on a webcasting service, members of the public addressed 36 North Clover Street, the proposed site of a new 47-unit apartment complex, which many felt is progressing without proper oversight. But the public’s participation was hampered by technological issues, including speakers being stuck on mute or otherwise unable to be heard.
And that wasn’t the only issue. For some residents, the overall experience was not only frustrating, but insulting.
Laurie Sandow was one of the concerned citizens who called into the meeting. She took note of the “council members who show up late, show up not at all, and/or log off and on, as if the rules of decorum had designated council meetings as the best time to eat dinner.”
The Poughkeepsie Common Council’s proceedings are a microcosm of the challenges local governments throughout the Hudson Valley face as they struggle to remain democratic while continuing to meet remotely due to the ongoing COVID-19 pandemic. With little support from the state, municipalities are approximating digital substitutes for procedures intended to be in-person—and many are falling short of some constituents’ expectations.
On March 13, Governor Andrew Cuomo issued his declaration of a statewide emergency due to COVID-19, which included a partial suspension of the “Open Meetings Law” allowing members of the public to physically attend meetings of public bodies. To reconcile the Open Meetings Law with his orders limiting public gatherings, the governor’s declaration explicitly required that such meetings “must be webcast and means for effective public comment must be made available.” Further guidance issued by the New York State Conference of Mayors reiterated that “the public body must provide the public the ability to view or listen to such meetings live and must record and later transcribe such meetings.”
But the agency officially tasked with overseeing and advising on the Open Meetings Law is the New York State Committee on Open Government, and according to its assistant director, Kristin O’Neill, it has little ability to actually enforce its mandate.
“The Committee on Open Government is authorized to provide advice and opinions regarding New York State open government laws,” says O’Neill. “However, the Committee is not empowered to investigate complaints or to compel an agency or public body to take certain actions.”
O’Neill explains that, since the start of the COVID-19 pandemic, committee staff members have made themselves available to answer questions regarding the Open Meetings Law and issued a number of advisory opinions on the subject—but Sarah Salem, chair of Poughkeepsie’s Common Council, says they have received no direction or support from the committee nor any other state- or county-level agency. (Salem identifies as non-binary and uses they/them pronouns.) Rather, the council was left to sort it out themselves.
“We began by testing GoToWebinar at our April 6 meeting,” says Salem. “This software didn’t meet our needs, so I switched to Zoom webinar, which we have been using since.”
The Poughkeepsie Common Council’s meetings are now broadcast live on the counsel’s website and Spectrum News, as well as being archived on Total Webcasting with transcripts. While this ostensibly meets most of the requirements set out by the governor’s declaration, as well as the Conference of Mayors’ guidance and Committee on Open Government’s opinions, it still leaves open the question of public comment.
“There wasn’t direct guidance on public comment in the governor’s executive order,” says Salem, “however, it was my aim to ensure the public continued to not only be able to watch the meeting but to participate.”
The Poughkeepsie Common Council began by soliciting comments via email to be inserted into the record. As Salem found this insufficient, they began reading all of the comments aloud during the meetings. Wanting to allow for further public participation, the council then allowed for members of the public to register with the city chamberlain to comment during meetings, with the chair unmuting them when their time to speak arrives in the queue.
While Salem believes this proves sufficient in meeting the governor’s requirement of “effective public comment,” not everyone agrees. Technological limitations aside, Sandow, for one, takes issue with the necessity of registering with the city chamberlain in order to speak at council meetings, as she believes it prevents contemporaneous public comment and is in contravention of state guidance. For its part, though, the Committee on Open Government has mixed views.
“With regard to attendance, it is our view that a public body should not require a member of the public to register in advance in order to attend a meeting in person, as to do so places an unnecessarily burdensome barrier to attendance,” says O’Neill in regards to the Open Meetings Law. “That statute, however, is silent with respect to public participation. If a public body does not want the public to speak during its meetings, a policy or rule to that effect would be valid.”
In other words: No, members of the public should not have to register to attend meetings—but they also don’t necessarily need to be given the opportunity to speak.
Nevertheless, the circumstances defy oversimplification. The Committee on Open Government’s opinions against public registration were issued in 2005 and 2007, and therefore were originally intended to apply to in-person meetings. While the committee believes they should apply to remote meetings as far as is practical in light of digital threats like “Zoom bombing” (the practice of disrupting online meetings that have not been password protected), Salem questions their relevance. And, as the committee is not an enforcement agency, the Poughkeepsie Common Council is apparently free to ignore the committee’s opinions.
Yet rather than defiance, there appears to be a disconnect. The Committee on Open Government is tasked with providing guidance on the conduct of public bodies like the Poughkeepsie Common Council, but the council says they’ve received no support. The council describes their progressive efforts to digitally approximate public participation prior to the pandemic, but members of the public like Sandow find them lacking. Sandow references the Committee on Open Government for judgement on the council’s efforts, but, again, the council’s never heard from the committee, so the issue just continues to go around in circles.
Of course the suddenness of the pandemic is arguably more responsible for this disconnect than any council, committee, or constituent. And, in time, the issue may be resolved through better tools and smarter processes, in the same way that the Poughkeepsie Common Council transitioned from GoToWebinar to Zoom, from emailed comments to lists of registered speakers.
But, in the meantime, the disconnect continues to fray the democratic process and those already on the margins feel further pushed to the edge. From this perspective, the apartment complex proposed for 36 North Clover Street could be a totem for the unravelling long underway. In addressing the subject, one of the members of the public commenting at the Poughkeepsie Common Council’s meeting on September 8 said to the council members:
“I sense there’s not a lot of transparency about buildings being purchased by developers. And I’d like to understand how the community can access easily the plans that are underway when entire neighborhoods get bought up by the wealthy.…I think if you could meet the people, you’d want to do everything you could to preserve their neighborhood.”