When the COVID-19 pandemic’s ramifications truly began to set in for Wisconsin, it made sense for government bodies to hold their public meetings virtually. In fact, the Wisconsin Department of Justice Office of Open Government issued guidance in March for holding public meetings remotely.
But now, as the state begins to reopen businesses and venture out after almost two months of stay-at-home orders, those bodies are looking for a way forward while trying to maintain the public access required by law.
What kind of message is a county board or city council giving if it is saying it’s safe to go out and businesses can open, if they themselves are unwilling to meet in person? But on the flip side, if the board or council returns to only in-person meetings, is that preventing the attendance of more vulnerable and older community members?
These are the questions elected officials across the state in counties, cities, towns and villages are grappling with.
“It’s tough because open meetings law doesn’t include a pandemic provision,” Paul Ferguson, assistant attorney general in the Office of Open Government, says.
With all of Wisconsin’s 72 counties open or beginning their phased reopenings, 35 of them are still holding virtual meetings, according to a Wisconsin Examiner analysis of county meeting schedules and agendas. There are 22 counties that are back to holding in-person meetings while 12 are providing an option to attend in-person or virtually. Three counties did not have any meeting notices posted for June.
“The discussion has been: How do we transition from completely remote, back into our physical meeting places but still maintain remote connections so people who aren’t comfortable coming to city hall can participate?” says Curt Witynski, deputy executive director of the League of Wisconsin Municipalities.
A big concern is sending conflicting signals, according to Tom Kamenick, founder of the Wisconsin Transparency project. Especially because the people who attend local meetings typically come from the area’s older population and are more vulnerable to the virus as well as often less able to use video technology.
He compared the decisions to be made by local government to the Wisconsin Supreme Court’s ruling to overturn the statewide stay-at-home order. The court ruled that the order was unlawful, while they heard arguments in the case virtually.
“The demographic definitely skews older and you do worry about sending mixed messages,” Kamenick says. “People criticized the Wisconsin Supreme Court’s decision. It’s a technical decision about law-making procedure around opening up but they’re still meeting virtually. It’s the same thing at the local level where if you have a county health department not imposing a stay-at-home order but they themselves are not willing to meet. If you want the public to have confidence, certainly you should be meeting, too, while following guidelines and wearing masks.”
However they move forward, according to Ferguson, the governments should always keep the intent of the open meetings law in mind. The state statutes outlining the open meeting of government says the meeting should be “reasonably accessible” to the public.
“What our advice has been and is to folks is to maintain and keep the purpose and the policy behind open meetings law in mind,” he says. “Allow access to the workings of government. Allow people to come to meetings, observe them — ensuring the meetings remain accessible to the public.”
So during a pandemic, “reasonably accessible” means providing multiple options, according to Ferguson.
“While this is still ongoing, a best practice would be for bodies to be keeping in mind the policy behind open meetings law and keep the concerns of the public and their own members in mind when holding these meetings,” says Ferguson. “Trying to offer various avenues for the public to attend the meeting, whether in person via various social distancing and cleaning practices or a means to attend virtually.”
But offering access both virtually and in-person to meetings can be easier said than done — especially for some of the smaller counties and municipal governments. The technology to hold virtual meetings can be constrained by budgets and local internet availability.
These constraints can sometimes get in the way of participation in the meetings through public comments or public hearings. While public comment isn’t required at most meetings, it is at a public hearing, so governments need to figure out a way to allow that participation while keeping people safe.
Witynski says he was on a conference call with IT officials from Madison recently as they outlined all the details involved for holding a virtual public hearing.
“It was impressive but intimidating for a lot of smaller communities,” he says. “[There are] 600 cities and villages, 1,200 towns and 72 counties. So among our members, there is a great variety of size, resources and political persuasion.”
Some counties in the Examiner’s analysis had discontinued public comment at meetings for now. In Kewaunee County for example, meetings were livestreamed on Youtube, which allows the public to watch but not actively participate.
Sure, people could still write letters or send emails, but the effect isn’t the same — especially because it’s hard to know if officials even read the comment.
“On the law side of things, for a normal meeting, there’s no normal requirement for a public comment section,” Kamenick says. “But it’s certainly best practice so people can exercise their First Amendment right to petition their government. There’s a certain gravitas to speaking publicly and taking your stand on your issue in front of the city council or county board.”
But even as governments start getting back to some semblance of normal, it’s clear some things may be permanent. A lot of community members around the state have told officials they like the virtual meetings because it’s easier to put on in the background while other things are going on.
“Like private sector and everyone else, this has opened our eyes to how citizens can engage in local government,” Witynski says. “Turns out people who weren’t necessarily able to come to monthly village hall meetings, they could participate remotely. So what I think is going to happen, local governments will react to demands of citizens. Demands will be, ‘Yes we understand conducting meetings in person, but we liked being able to participate remotely so we want to continue that option, too.’”
As the summer continues, however governments decide to hold these meetings, the safety of the public and the body’s members need to be kept in mind.
“Unfortunately, we don’t have a concrete answer, we have the guiding principle behind the open meetings law and guidance from health officials,” Ferguson says. “We have to find a way to fulfill our obligation under the law and accommodate our fellow citizens in trying to ensure everyone can attend that wants to attend and do so safely.”