City Council resuming in-person meetings

[Dan OMalley]

Given the significant decrease in local COVID transmissions recently, City Council will resume in-person meetings this coming Monday, February 7th. Health and safety protocols for councilmembers, city staff, and members of the public will still be observed in the auditorium.

Dan O'Malley
Lakewood City Council President
Councilmember, Ward 4

[Mark Kindt]

Noting that the City's Board of Zoning Appeals is holding a "virtual" meeting on February 17th rather than an open meeting; who makes the determination that either an emergency or special circumstances justifies abandoning open meetings under the new City Ordinance No. 02 2022?

The City Ordinance is silent on delegation of authority for this.

[Dan OMalley]

Noting that the City's Board of Zoning Appeals is holding a "virtual" meeting on February 17th rather than an open meeting; who makes the determination that either an emergency or special circumstances justifies abandoning open meetings under the new City Ordinance No. 02 2022?

The City Ordinance is silent on delegation of authority for this.

Mark, the ordinance states that either a majority of the body’s members or the chair can declare that such circumstances exist to necessitate a “virtual” meeting (one held via Zoom or another common digital platform). I suspect will soon be either repealing this ordinance or making it more definitive. As I mentioned before and as has been reported in the media, Zoom meetings have made public meetings more accessible for the public (particularly the disabled) and have resulted in increased public participation: https://www.cleveland.com/metro/2021/05 ... utType=amp

[Mark Kindt]

Thank you. I did go back and reread the ordinance. Yes, that is how it reads.

Your lawyers understand that this is a mess and there is no quick fix except repeal. Repeal is the quickest and safest path for the City to reduce its potential legal liabilities related to conduct that courts may construe as ultra vires.

While "Zoom" government may be inevitable, there is no "instant" or "easy" local legal path to its arrival.

It affects a range of fundamental legal, personal, business and constitutional rights and is likely to have a long and winding path through the courts whenever and wherever adopted.

But one example. Should a citizen appointed and serving on a public board really have the technological power to "mute" all participants? Yep. That's how it works on Zoom.

You can take it from there.

[Stan Austin]

How have other cities in Ohio and elsewhere handled this situation?

[Mark Kindt]

While virtual public meetings may have real benefit for some, as noted by Council President O'Malley, for others they may imposes technology costs and technology learning curves onto many who might just want to sit in the halls of democracy and listen in the real world to their elected or appointed representative go about the public's business as commonly done since before our Revolutionary War and up to about 2019 ACE.

Ordinance No. 02 2022 is a fundamental change to basic ideas and concepts of participatory democracy as most of us know and understand it. It is not authorized by the City Charter and its real world application is likely in violation of Ohio open meetings laws, since there is no longer a statutory exemption for such proceedings.

Conducting public meetings in potential violation of the Ohio open meetings laws poses significant legal risks for those who take official action during such virtual events and subjects such official action to legal challenge.

This is particularly unfair to those citizens who have volunteered in the public interest and good faith to service on boards and commissions as appointees and who may not understand the legal risks that they might face in such service in the Zoom environment.

It may be the future, but it will take some time to evolve in both a legal and a consensual manner that is truly viable and inclusive.

[Stan Austin]

Mark Kindt ,Atty.-- in reading your response, my reaction is the same as Casey Stengel's (manager or the New York Yankees during the 1960's) "can anybody play this game out there?"

[Dan Alaimo]

It's hard for me to understand how conducting public meetings via online/Zoom in addition to the in-person meetings is a bad thing. It is additive to the democratic "town hall" process and takes nothing away from it. If our local government were using it to shut people out, that's another matter, but not the motivation of the current administration. If the wording of the law is problematic, then change the wording.

[Mark Kindt]

Maybe this is great! Maybe not!

I am on a private party video call right now. I have been automatically muted and my consent to the recording of the call is automatically mandated. This "power" is embedded in the technology itself.

Lakewood is doing what it is doing under the pressure of the threat of Covid-19. I understand this. That is the nature of the emergency or the special circumstances.

However, but for Covid-19, a serious experiment in government like this would have required a long-trial run and a plan for legal legitimacy.

As a professional journalist, you might want to consider the potential impacts of virtual open public meetings on the full scope of First Amendment rights.

I write about this topic with a broad recognition of the prior poor record held by the City in the key areas of openness and transparency reflected by years of public interest litigation between 2015 and 2018.