As government bodies meet virtually, how maintain open government and public comment? Well, you can submit comments on ESD agenda items (but not board materials)

Someday public bodies will be meeting more frequently, if not in person, and perhaps the Atlantic Yards Community Development Corporation--its scheduled 3/18/20 meeting moved from in-person to teleconference, then postponed--will finally meet again. And the parent Empire State Development has been meeting by teleconference.

So it's worth a look at the 3/15/20 Gotham Gazette article 'Open' Government Amid an Outbreak, in which Ethan Geringer-Sameth explains a 3/12/20 executive order from Gov. Andrew Cuomo, which suspended aspects of the state's Open Meetings Law.

Here's the relevant passage:

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;

Note that allowing the public to view or listen to a proceeding is not the same as offering the opportunity for public comment, which had been preserved in a March 7 emergency declaration. (And, as far as I can tell, subsequent executive orders have not updated the policy.)

That said, Empire State Development has been allowing a version of public comment, as described below.

Executive power?

Transparency watchdogs are worried. The article notes that State Sen. Brad Hoylman has proposed a bill, not yet passed, which also authorizes remote meetings:

But unlike [Cuomo's] executive order, which effectively supersedes aspects of the Open Meetings Law, Hoylman's bill works within its framework. It sets up more protocols for and restrictions on its usage and maintains the existing law's enforcement mechanism, which subjects abuse to challenge in the courts.

The governor "hasn't abused [the powers[ yet but the potential for abuse is huge and everyone should be keeping a careful eye on it," Reinvent Albeny's John Kaehny told Gotham Gazette.

Board meetings and board materials

A look at the board meetings list from Empire State Development shows that ESD is allowing members of the public to submit comments on agenda items.

For example, for tomorrow's board meeting, members of the public may submit comments on the Agenda items in writing to ESD@esd.ny.gov by 4:30 pm today. Also, the public should be able to listen via webcast at this link (which isn't live yet).

A three-page agenda is posted. (There's nothing related to Atlantic Yards/Pacific Park.)

However, no board materials were posted as of 8 am, and such materials often have details that are worth commenting on. ESD typically does not post board materials until very shortly before the meetings, but those attending the meetings in person get the opportunity to quickly peruse a copy of those board materials placed on a table outside the meeting.

A somewhat better example was set for the 3/31/20 Lower Manhattan Development Corporation Directors Meeting, which said that the agenda and also meeting materials would be posted the day before the meeting on LMDC’s website. The LMDC is an ESD subsidiary, as is the Atlantic Yards Community Development Corporation.

Assuming those meeting materials were posted before the 4 pm deadline for public comments, that would give members of the public more opportunity to comment intelligently.