During COVID-19 State of Emergency, Transparency and Public Access to Government Proceedings Must Be Maintained

As public officials at every level of government wrestle with the challenges of the COVID-19 pandemic, including implementation of social distancing measures that impact the public’s ability to attend government meetings and other proceedings, Common Cause encourages public officials to adopt emergency measures to protect public health while maximizing transparency and remote public participation and limiting government business to priority functions necessary under the current emergency conditions.

“The COVID-19 pandemic presents an unprecedented challenge to our institutions of government, but public officials can and must do everything reasonably possible to maximize transparency and remote public access to government meetings and proceedings,” said Karen Hobert Flynn, president of Common Cause. “Americans expect and deserve the ability to oversee and participate in government decision making. While it is crucial for public officials to follow the guidance of public health officials, it is likewise crucial for public officials to ensure that government business conducted at this extraordinary time be as transparent as possible, with opportunities for public participation via videoconference, teleconference and through written testimony. Further, governments must pursue strategies to continue functioning just as companies, organizations, schools, and service providers are adapting widely-available technology to facilitate their work. Our priorities may have shifted, but that does not mean democracy goes on hiatus. In addition to accomplishing priority functions such as budgets, pandemic response legislation, and recovery planning, government needs to be working to make sure people can both be safe and continue to exercise their right to vote.”

The United States Centers for Disease Control and Prevention (CDC) has recommended that in-person events that consist of 50 people or more be canceled or postponed. The White House has advised people to avoid social gatherings of more than 10 people. Some jurisdictions have ordered residents to shelter at home for the coming weeks. Consistent with this advice, public officials from coast to coast have postponed or shortened legislative sessions and have limited public access to government buildings and meetings. For example, California Governor Gavin Newsom has issued an emergency executive order that, among other measures, suspends application of certain provisions of the state’s open meetings laws by allowing local government agencies to hold meetings telephonically or electronically without public access to the meeting site.

Common Cause urges strict compliance with CDC guidance and the guidance of state and local public health officials. It is understandable that public officials are curtailing legislative sessions and limiting the public’s in-person access to government proceedings. However, public confidence in government is more important during a time of crisis than ever. Public officials must do everything in their power to maximize the ability of the public to continue observing and participating in government proceedings, following these recommendations where possible:

• Postpone non-priority government action until the state of emergency has ended.
• Provide widespread public notice of scheduled government proceedings.
• Provide public access to observe government proceedings via live and recorded video available on government websites.
• Provide public ability to participate in government proceedings via videoconference where possible and, at a minimum, via telephone and submission of written testimony.
• Require all members of a public body participating in a meeting or proceeding to be clearly audible and visible at all times, including to the public.
• At the start of the meeting, require the chair to announce the names of any members of the public body participating remotely.
• In the event audio or video coverage of a proceeding or meeting is interrupted, require the presiding official to suspend discussion until audio/video is restored.
• Require all votes to be roll call votes.
• At the beginning of any executive session, require all members of the public body to state that no other person is present or can hear them.
• Record all open sessions of meetings and make such recordings available to the public via government website.

Any reduction in public transparency and public participation in government proceedings must not be exploited by any political party or interest group for personal, partisan or other political gain. The same rules of access must apply to everyday Americans and well-connected lobbyists. This is a time for our country to be united to protect each other as we face COVID-19, and that includes respecting and protecting public participation in and oversight of government.