In reformatting, rescheduling, or canceling council meetings to respond to coronavirus concerns, municipalities should be aware of the following considerations:
- South Carolina law provides that to meet public emergencies, municipal councils may adopt emergency ordinances. (S.C. Code § 5-7-250(d)). Emergency ordinances require the affirmative vote of at least two-thirds of the members of council present, but only one reading is required.
- The notice and agenda posting requirements of FOIA do not strictly apply to emergency meetings. (S.C. Code § 30-4-80(A)). On the other hand, for the public benefit and from an abundance of caution, municipalities should use every effort to comply with the notice and agenda posting requirements that would ordinarily apply.
- The emergency powers of council are limited in scope and time. Emergency ordinances automatically expire in sixty days, and emergency meetings must be clearly approved by council and limited to appropriate purposes.
- The South Carolina Attorney General's office has interpreted FOIA to allow individual councilmembers to participate in council meetings by telephone or other electronic means, provided that all persons in attendance (councilmembers, staff, press, and members of the public) are able to hear all discussion and participate as appropriate.
- Local ordinances may require that councilmembers be physically present to count toward a quorum. Municipalities should consult with their attorneys to be sure that quorum requirements are satisfied during the emergency.
- Councils may consider adopting a coronavirus declaration or emergency ordinance that, among other things, describes the method by which council will meet during the period of interruption and specifically authorizes participation by telephone or other electronic means.
- For telephonic or electronic meetings, municipalities should (1) provide a call line or videoconference by which all members of the public are able to participate and address the governing body; (2) post timely written notice that informs members of the public of the method by which they may participate remotely; (3) distribute an electronic copy of the agenda packet to be considered, equivalent to the physical agenda required under FOIA; and (4) record the telephonic or electronic meeting and provide the public with access to such recording.
- Municipalities that have already conducted meetings by telephone or other electronic means have reported that background noise from participants has been a problem. Subject to the requirement that members of the public be allowed to participate to the same extent as if they were in a physical meeting, municipalities may consider conducting telephonic or electronic meetings on a platform that allows the host to mute participants. There are multiple free or low-cost platforms with this ability.