As emergency conditions continue, local governments are beginning to debate whether quasi-judicial hearings should or can be held virtually during the COVID-19 emergency.
How to Manage Quasi-Judicial Hearings in the Virtual World
It remains the safest course of action for local governments to hold virtual meetings only for the essential purposes of maintaining the health and safety of the public. If you are an entity that is able to make it through this emergency without holding a quasi-judicial hearing, it is advised not to.
However, as time goes on and a backlog of cases creates pressure to hold quasi-judicial hearings virtually, this decision must be made based upon an individual city/county process and dependent upon the complexity of each jurisdiction’s quasi-judicial hearing process.
If a city/county/governing body decides that a quasi-judicial hearing must be heard during the COVID-19 emergency, it is recommended as follows:
- All required notices should state that the hearing will be held “virtually” and include the “virtual location.”
- Keep in mind that notice requirements and providing for public comment and cross-examination is not waived by any of the Governor’s COVID-19-related executive orders.
- For swearing-in of witnesses, it is advised that the governmental entity look at how its local court(s) are swearing in witnesses during first appearance in court proceedings and follow that same method.
- In order to ensure proper transcription of the hearing for appeal purposes, it may be advisable to use a court reporter. This would also be a good method of ensuring that documentary evidence is properly tracked.
- At this time, the best guidance you can turn to is how your local judicial system is operating during this virtual dilemma. “If it’s good enough for the courts, it's good enough for a quasi-judicial hearing by a local governing body.”
- It may be best practice for your governing body to adopt uniform rules of procedure for all virtual meetings.
- If an entity is going to proceed with a quasi-judicial proceeding, then establish a set of rules on how those meetings are to be handled in a virtual setting. The entity would then want to adopt those rules via an emergency order.
- It is also important to note that the rendering of the final decision may not stave off due process claims, which have a four (4) year statute of limitations.
Additionally, local governments can seek guidance in the process set forth in Fla. Stat. § 120.525(3), which provides that the agency is authorized to hold a virtual, emergency public meeting so long as:
- Notice is given by any procedure that is fair under the circumstances and necessary to protect public interest;
- The procedure provides due process;
- The agency only takes necessary action(s) to protect the public interest; and
- The agency publishes in writing either before or at the time of its action the specific reasons for finding an immediate danger and its reasons for concluding that their procedures used are fair under the circumstances. These findings will be judicially reviewable.
To Zoom or Not to Zoom: Technology for Virtual Meetings
Throughout the State, counties, cities, school boards, and other governmental bodies have found the most success with Zoom for conducting virtual meetings. However, there have been some concerns with Zoom and the “zoombombing” that has been experienced and reported nationwide.
If using Zoom as a “social media” platform to conduct meetings, it is recommended that the Zoom meeting run simultaneously with a live TV-feed for those who do not have access to or familiarity with social media and computers, or to provide another access point for the public to observe or participate in meetings.
Also make sure that the Zoom meetings can either be archived or otherwise recorded.
Preparing for Public Participation
It is a Constitutional right to have public access to board meetings, which is why it is imperative that there is more than one feed available to the public occurring simultaneously so the meetings are most easily accessible.
Amongst the media platforms on the market that provide public participation are Zoom, Facebook Live, YouTube, and Microsoft Teams. There are plenty of other platforms on the market as well, but make sure that your information technology team is fully familiar with the use and functionality of whichever platform your entity chooses.
It is best practice to provide information to the public on how to submit comments before the meeting occurs. Provide ways in which the public can submit video and audiotapes in addition to written comments. Establish an e-mail that is monitored and handled by a staff member before, during, and after the meeting. While providing a pre-registration for public comments is acceptable, only accepting email comments would be problematic.
Additionally, it is best practice to provide a phone number to the public where individuals can call in with comments before and during the meeting. This should be a supplement to any meetings that are streamed and the chat feature is available to the public during the stream.
A script is essential: well before a meeting starts, a script should be prepared for a moderator or chair to use that addresses the mechanical logistics that typically would not exist in meetings held pre-COVID-19. This includes making sure to take a roll call, having everyone state their names in the beginning of the meeting and any time before they start speaking, to mute their lines while not speaking, etc.
It is also recommended that your board create the following checklists: a checklist for before the meeting, a checklist for initiating the meeting, a checklist for whichever platform you choose to host the meeting on, and a checklist for during the meeting.
- Pre-Meeting Checklist: ensure that your meeting has been properly noticed and posted and that a place has been provided for the public to make comment. Also make sure this virtual location is in a form that can be transcribed, either audibly, visually, or in writing.
- Platform Checklist: go through all of the functions of the platform you choose to host the meeting on, do several test runs/mock meetings before the actual meeting takes place. Make sure that the mute/unmute function is working properly and that closed caption is available in order to be ADA compliant.
- Initiating-the-Meeting Checklist: make sure everyone is present, cover the ground rules, and be very clear in your directions so the public understands how the virtual meeting will play out.
- During-the-Meeting Checklist: make sure that speakers are always stating their name before speaking, roll call votes are taken, and that the recording reflects that the meeting is being held virtually and which platform it is being held on. Before the meeting concludes, have the meeting chair read into the record a “statement of findings” so it is clear on the record what was decided and voted upon, leaving no question as to the conclusions and decisions reached.
Providing Notice for the Virtual Meeting
For public participation, make sure that you notice the meeting according to your respective local Code of Ordinances.
Providing a physical location in which to gather to view/provide comment should be avoided unless there is no other technical option. If a governmental entity has decided it needs to make a building open to the public to gather for a meeting, make sure to keep social distancing measures in place and limit room occupancy to ten (10) or fewer.
Provide information in the notice as to how individuals can e-mail, mail, or call in information if they want to present to a board ahead of time. This is not in lieu of public participation during the meeting.
Provide information to the public as to where they can get assistance electronically before the meeting, and provide directions as to how they can participate and observe the meeting and how to provide comment during the meeting (depending on what platform(s) you choose).
It is imperative that you are familiar with your chosen virtual forum before disseminating directions on how to navigate the forum. You want to avoid misinforming the public as to the forum’s use in order to avoid any issues in the future.
Also, provide a TTY line for the hearing-impaired population.
Application to Advisory Boards and Non-Commission Boards
Executive Order 20-69 used the language “governmental body” instead of “governing body.” Therefore, if desired, a city could apply virtual proceedings to bodies other than the governing body.
Executive Order 20-69 as it applies to advisory board and non-commission boards: if you have an advisory board that is not taking action, non-voting meetings may be held virtually. This has been allowed outside of and before the circumstances created by COVID-19.
Recap of “Musts” for Hosting Virtual Meetings
It is imperative that you transcribe the meeting once it concludes, and that public comments are preserved for the record.
If you are using Facebook Live, make sure before using the platform that you are able to capture comments and the displays that occur during the live stream (multiple mock meetings are crucial).
It is advised that you do not rely on one form of live stream – consider using at least two, such as a live TV-stream for those who do not have computer or internet access and a social media streaming platform.
If your live TV-stream is recorded, you do not necessarily need to transcribe the Facebook Live (or YouTube or Zoom) meeting, however, you want to be able to transcribe any public comments that are provided on any platform being considered and/or addressed in the meeting.
Follow the Sunshine Law and your local city code with notice requirements as you would for an in-person meeting, but ensure that you provide all of the details necessary for the virtual meeting to be easily accessed and maneuvered by the public.
*When we return to normal governmental services, it is best practice to ratify any actions that a board made during a virtual proceeding while holding an in-person meeting after the COVID-19 emergency passes.*
401 East Jackson Street
Tampa, Florida 33602
401 East Jackson Street
Tampa, Florida 33602