Open Meetings Law And The ADA Are Not Always In Sync

Amagansett resident Glenn Hall, who heads the East End Disability Group, testified, via video conference, at a public hearing at the legislative offices in Albany examining the need for potential changes to the state's open meetings laws in the wake of the Covid-19 pandemic.

When Glenn Hall found out that the New York State Legislature would be holding a public hearing on the pandemic’s impacts on the state’s open meetings law and proposed changes to that law, he knew he wanted to not only be there, but to testify. And he was able to, thanks to video conferencing technology that has created much greater access for members of the public to participate in local government.

Ensuring the kind of access that enabled him to attend the meeting remains in place after the pandemic ends is the reason why Hall was there. The 73-year-old Amagansett resident is a passionate and outspoken advocate for people with disabilities, and is the chairman of East End Disability Group, a nonprofit that serves as a voice and provides resources and support for people with disabilities.

According to Hall — who has limited mobility after contracting polio when he was just 4 years old — the state’s open meeting law has long been out of compliance with the Americans with Disabilities Act, a 1990 statute that prohibits discrimination against people with disabilities and exists to ensure they have the same rights and access as non-disabled people.

During seven hours of testimony, in front of a group that included Assemblyman Fred W. Thiele Jr., who chairs the committee on local governments, Hall spoke about how the law has long been in need of updates to comply with the ADA, and that the COVID-19 pandemic proved that, thanks to technology, it isn’t hard to provide the access that disabled people deserve under the law.

“This is about civil rights, it’s about human rights, it’s about dignity, and it’s about government changing the way it does meetings,” Hall said. “And it’s about a local organization going to Albany to stand up for you and me.”

For decades, Hall has been deeply involved and engaged in civic life, serving on multiple boards and committees, despite the challenges that come with being disabled and managing the logistics of getting to and from in-person meetings. Getting there in person isn’t always possible for someone with a disability, and he said that should never be a barrier to being able to participate. Failing to comply with the ADA is “a lawsuit waiting to happen,” Hall said.

There is optimism that it will never get to that point. For his part, Thiele said he thought Hall brought up important points at the hearing, saying he thought his points were “well made and well taken.”

At the start of the pandemic, an executive order made it possible for local governments to hold meetings virtually. That order was in effect until the emergency authorization expired in June. From June to September, there was no official authority on the matter, meaning all local governments had to return to in-person meetings. When the Legislature met in special session in September, it passed an act to continue allowing virtual or hybrid meetings until January 15, 2022, this time giving individual bodies the discretion to choose between fully virtual or hybrid meetings.

For Thiele, figuring out how to proceed when it comes to possible changes to the state’s open meetings law — which he thinks are necessary — is a two-part process: figuring out how to update the law so there’s more guidance on how to proceed in an emergency situation (like the pandemic), and how to make sure the law catches up to the technology and allows for greater access generally speaking.

“As is often the case, the technology gets ahead of the law,” Thiele said. “Before the pandemic, the open meetings law wasn’t completely silent on remote participation, but it was almost silent. There’s nothing in the law that talks about the public participating remotely. It doesn’t say they can or can’t, and some have interpreted that as saying it’s already permitted, and others are saying it should be expressly stated in the law.”

Thiele comes down on the latter side of that debate, but said figuring out how to proceed does require some careful consideration, especially when it comes to remote participation for government officials.

“It’s a bit of a balancing act,” he said. “You want to facilitate participation, but on the other side, you don’t want it to be so open for public officials that they never have to meet the public. In a hybrid meeting, should we allow public officials to participate remotely? And if so, under what standards?”

During the hearing, Thiele said that the bulk of the testimony supported the idea that fully virtual meetings should only be permitted in emergency situations, like a pandemic, and he added there also seemed to be broad consensus that the law should facilitate remote participation by the public by putting it explicitly in the law.

“One of the questions was whether we should leave that up to local government, or make it a mandate for local governments, which will require further discussion,” Thiele said.

When it comes to providing equal access for people with disabilities, Thiele said that fostering remote participation through hybrid meetings is a logical step.

“The federal ADA requires that accommodations be made, and almost federally mandates that those with disabilities be allowed to participate remotely, not just as members of the public but as board members as well,” he said. “We have to figure out how to implement that, but I think we share the same goal of wanting to foster public participation, and that includes access to people with disabilities. The technology exists and for the most part is readily available.”

Thiele said there was some discussion about the state possibly helping local governments with mitigating costs when it comes to procuring and setting up the technology that allows for hybrid meetings, if certain boards don’t already have it at their disposal, and he added that improving WiFi access is an important piece of the discussion as well.