The many closures and cancelations resulting from the COVID-19 pandemic have led to questions on how to handle the meetings of public bodies in compliance with the SC Freedom of Information Act. In reformatting, rescheduling or canceling council meetings to respond to coronavirus concerns, municipalities should be aware of these considerations.
Emergency meetings and ordinances
The notice and agenda posting requirements of FOIA do not strictly apply to emergency meetings (SC Code Section 30-4-80(A)). Even so, for the public benefit and out of an abundance of caution, municipalities should use every effort to comply with the notice and agenda posting requirements that would ordinarily apply.
South Carolina law provides that to meet public emergencies, municipal councils may adopt emergency ordinances (SC Code Section 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 emergency powers of council are limited in scope and time. Emergency ordinances automatically expire in 60 days, and emergency meetings must be clearly approved by council and limited to appropriate purposes.
Councils may consider adopting a 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 phone or other electronic means.
Participating by phone or electronically
The SC Attorney General's office has interpreted FOIA to allow individual councilmembers to participate in council meetings by phone or other electronic means, provided that all persons in attendance — councilmembers, staff, media 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.
For telephonic or electronic meetings, municipalities should:
- provide a call line or videoconference by which all members of the public are able to participate and address the governing body;
- post a timely written notice that informs members of the public of the method by which they may participate remotely;
- distribute an electronic copy of the agenda packet to be considered, equivalent to the physical agenda required under FOIA; and
- record the telephonic or electronic meeting and provide the public with access to such recording.
Municipalities that have 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.
Learn more and find a model ordinance for providing emergency procedures for public meetings online.