Looking Past the Pandemic: Local Government Quasi-Judicial Proceedings

In this next part of our “what’s next” in North Carolina land use series we look at public meetings, which are an essential part of land use permitting.  In particular, we look at quasi-judicial proceedings past the pandemic.

North Carolina remains under a state of emergency, and I think that will remain for quite some time.  In light of that declaration, we’ve been talking lately about whether local governments are holding meetings, in general, where participation can only be virtual.  We’ve noted that some local governments are holding public meetings, but only with regard to consent agenda items and, perhaps, legislative actions.  We have not yet seen jurisdictions hold quasi-judicial proceedings amidst our new “virtual reality”.  Related to this, in late March amidst a bunch of thought pieces about how local governments probably shouldn’t hold meetings virtually unless absolutely necessary (and, even then, quasi-judicial proceedings were not at all advisable), the NC Attorney General issued an opinion letter stating that, yeah, open meetings laws are met virtually provided care is taken.  But, again, there was no real provision for quasi-judicial proceedings.  So, until, last week, the loudest position was basically, “You can probably hold public meetings, but we don’t think you can hold quasi-judicial proceedings.”

Early last week, North Carolina passed a law (S.L. 2020-3) allowing virtual quasi-judicial proceedings during a state of emergency in North Carolina.  Quasi-judicial proceedings can occur virtually during a state of emergency (which we are in, and will be in) provided: (1) the right of an individual to a hearing and decision occur during the emergency; (2) all persons subject to the quasi-judicial proceeding who have standing to participate in the quasi-judicial hearing have been given notice of the quasi-judicial hearing and consent to the remote meeting, and (3) all due process rights of the parties affected are protected.

Then, if a quasi-judicial proceeding occurs virtually, the local government and the parties must take care to follow the legal requirements:

• Broadcasting/Openness – Meetings must either be streamed live online so that simultaneous live audio, and video, if any, of such meeting is available to the public (e.g., WebEx), or by conference call provided the public has an opportunity to dial in or stream the audio live and listen to the remote meeting.
• Notice – The law remains the same outside an emergency, except that it must “specify the means by which the public can access the remote meeting”.
• Quorum – The necessary members must have “simultaneous communication” throughout the proceeding.   “Simultaneous communication” is defined to mean “communication by conference telephone, conference video, or other electronic means” such that the member is able to hear what is said by the other members, to hear what is said by any individual addressing the board, and to be heard by the other members.
• Member Presence -- Unless physically viewable by computer screen, each member must identify himself/herself when the meeting is opened, in the event of every motion or other procedural event, prior to deliberations, and prior to voting.
• Evidence – All documents to be considered shall be provided to each member.
• Public Participation – The process must allow for the submission of written comments between publication of any required notice and 24 hours after the public hearing.
• Voting – Must be by roll call.
• Minutes/Orders – Minutes shall reflect that the meeting was conducted by use of simultaneous communication, which members were participating by simultaneous communication, and when such members joined or left the remote meeting.  The same is wise of orders.

This is an important, and wise, first step in the American ability to adapt, to adapt sensibly, and to adapt with personal and collective freedoms carefully balanced.  We’ll see which local governments, and how local governments, choose to apply the new law, and we’ll see how the process unfolds for government staff, government board members, applicants, and neighbors.  In the meantime, we are glad to see our State presenting an option for careful “opening”.