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Saturday, June 13, 2020

Let's be very clear....Cuomo's Executive Orders....

...regarding holding meetings which differ from holding Public Hearings are an easy read for anyone who takes the time to read them.  I did just that.

First of all, Public Hearings are required by sections of Town Law; other town meetings are held to conduct the normal business of the town and not specifically controlled by any law other than the Open Meetings Law.

Governor Cuomo's Executive Order 202.1 dated March 12, 2020, was the first directive regarding meetings of local governments. It stated:
Suspension of law allowing the attendance of meetings telephonically or other similar service:
Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed;

Contrary to how Miscione or the town attorney is reading this order (if they even read it), it did not throw the Open Meetings Law out the door; it merely allowed a local government to hold a meeting without requiring that the public be allowed to attend in person. All other sections of Article 7 of the Public Officers Law has been and is still in effect.

On April 9, 2020, the Governor got a little more specific as to what meetings he is addressing in Executive Order 202.15 which states:
Any local official, state official or local government or school, which, by virtue of any law has a public hearing scheduled or otherwise required to take place in April or May of 2020 shall be postponed, until June 1, 2020, without prejudice, however such hearing may continue if the convening public body or official is able to hold the public hearing remotely, through use of telephone conference, video conference, and or other similar service.
So it is fairly clear that he is speaking directly to a Public Hearing which is required by law, i.e. zoning, local law, etc. and has proclaimed they cannot take place until June 1, 2020 unless the local government uses a format which allows for the public to speak remotely in real-time.

On June 7, 2020, the Governor released Executive Order 202.39 which states:
NOW THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, do hereby continue the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202.15, through 202.21, and including 202.29, as contained in Executive Order 202.29 until July 7, 2020.
So, Executive Order 202.15 (above) regarding Public Hearings has now been extended until July 7, 2020.

The Governor's Executive Orders are currently through 202.40 which did not supersede any order in the 202.39.

Therefore, the town board has 3 choices to make prior to the two (2) Public Hearings that have been scheduled for this Wednesday, June 17, 2020:
  • Defy the Governor's Executive Orders their doors to everyone who wishes to speak on June 17, 2020 and not worry about social distancing if there is inadequate room for all who choose to attend ...(not just the first 10 who show up
  • Cancel the Public Hearings; actually, the one for solar is invalid anyway just by the fact that the law has not been followed regarding adopting a local law;
  • OR

  • provide a means to hold the hearing interactively with interested persons from the public able to remotely be heard during the meeting.
That last choice will require some fast work because they need to make sure that the public is fully aware of where and how the public can connect to the meeting; the Open Meetings Law requires that:
§104. Public notice.
  • Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given or electronically transmitted to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
  • Public notice of the time and place of every other meeting shall be given or electronically transmitted, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
  • The public notice provided for by this section shall not be construed to require publication as a legal notice.
  • If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
  • If a meeting will be streamed live over the internet, the public notice for the meeting shall inform the public of the internet address of the website streaming such meeting.
  • When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body's internet website.
Bond, Schoeneck & King has a good article regarding compliance, they state:
When utilizing videoconferencing or teleconferencing to conduct your meeting, the public notice for the meeting must inform the public about that electronic method(s) that will be used. The notice should also provide information about how the public can view or listen to the meeting (e.g., provide the website URL and log-in information for an online videoconference meeting or the dial-in instructions for a telephone connection to a meeting).
I have provided links to all the Executive Orders mentioned above in case anyone is interested. The NYS Comptroller has weighed in on the subject; so has the Association of Towns and the Conference of Mayors.

With all the resources available online, our town attorney was apparently unable to competently advise Miscione and the town board regarding the ins and outs of holding a Public Hearing under the Governor's Executive Orders.

As taxpayers, we pay the town attorney's salary...I believe he needs to start doing his job!

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