Public meetings in a time of pandemic

Published March 11, 2020

By SCPA Attorney Jay Bender

The current strategy to stall the spread of the highly contagious COVID-19 virus is the maintenance of “social distance,” personal hygiene and youth.

On the social distance side of the ledger, the Columbia Mayor has announced that City Council meetings will be closed to the public and staff not needed for the conduct of the meetings. Public comment periods would be eliminated, but written questions or comments can be submitted.

As Bill and I were judging the barbeque at Palmetto Pig (it was good as always), Bill questioned the legality of a closed meeting with no public comment. A fellow sitting at the communal table with us offered the opinion that both were illegal. Are they?

Nothing in the Freedom of Information Act requires a public body to have a public comment period, and nothing I have found in the statutes governing meetings of governments requires a public comment period except in the circumstance of a public hearing. As an example, a public hearing is required before an annual budget can be adopted.

What about a meeting closed to the public? The FOIA does address meetings, and defines them as “the convening of a quorum of the constituent membership of a public body, whether corporal or by means of electronic equipment, to discuss or act upon a matter…” “Corporal” means “relating to the body,” as in a paddling, which is corporal punishment. The inclusion of “electronic equipment” in the definition of a meeting indicates that a public body may meet electronically. The only requirement would be that the public have a means of accessing the electronic meeting.

The City of Columbia transmits live video of its meetings by cable television and internet streaming. Both measures would seem to me to satisfy the requirements of the FOIA.

Stay healthy and safe. 

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

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