ADVISORY: OPEN MEETINGS IN 2021 FOR GEORGIA LOCAL AUTHORITIES IN CONJUNCTION WITH COVID-19

The 2021 amendment to Georgia’s Open Meetings Act (OMA) made by HB 98 actually codified some of the practical responses that development authorities and other public bodies had adopted in order to operate in the COVID-19 environment.

The OMA already allowed virtual (teleconference) meetings under circumstances necessitated by emergency conditions, subject to certain requirements. These requirements were (and are)-

1. The emergency condition must involve public safety or the preservation of property or public services;
2. The meeting notice required by the OMA must be given; and
3. The public must be afforded means to have simultaneous virtual (teleconference) access to the meeting.

The underlying justification for a virtual meeting is an emergency condition. HB 98 defined that to include-

1. Declarations of federal, state, or local states of emergency; and/or
2. An emergency condition found by an agency (such as a development authority or a downtown development authority) to exist and to necessitate meeting virtually.

HB 98 also clarified that-

1. Virtual participation by a member of the agency is the same as being at the meeting in person.
2. A virtual meeting can also be a virtual (teleconference) public hearing (such as a bond validation proceeding).
3. In a virtual public hearing, members of the public must be afforded the means to participate fully in the same manner as if such members of the public were physically present.

Georgia is now in a transition, since the Governor ended the Public Health State of Emergency on July 1, 2021. What is in effect now (until August 29, 2021, at 11:59 p.m.) is a State of Emergency with limited declarations, directed primarily at “the impacts of COVID-19 on the economy, supply chain, and healthcare infrastructure.” The latest declaration, on each level of government, should always be checked.

In order to legally hold a virtual meeting, there must not only be an emergency condition, but the 3 requirements mentioned above must be satisfied. One of them is that the emergency condition involves “public safety or the preservation of property or public services.” An agency that wants to meet virtually should always give due consideration as to whether the requisite conditions exist.

Justification to hold a meeting virtually in this transition period could be an appropriate declaration of emergency by the agency’s local government, if such continues to be in effect. The agency could also adopt its own finding that emergency conditions exist that necessitate meeting virtually, but the agency should support its finding by citing in its resolution as many facts as possible, such as that the local government still requires, by ordinance or by administrative policy, as appropriate, that masks be worn or that COVID-19 screening take place for admission to public buildings (such as the agency’s meeting place), etc.

Further Questions?

GEDA would like to thank Dan McRae and Kevin Brown, Partners at Seyfarth, for writing this Advisory for our members.