Public Participation in Remote Meetings

TO: Milford Board and Commission Chairs    

FROM: Charles D. Boddy, Jr., Town Counsel

DATE:  May 11, 2020

RE: Boards and Commission re Public Participation in Remote Meetings Under -COVID 19

This memorandum addresses the role of the public in remote public meetings conducted post COVID-19 under Governor Baker’s March 12, 2020, Executive Order.

  • The Board’s role is to delicately balance the need for public access, public participation, public speech, and the prevention of unlawful speech and illegal conduct.
  • The conduct of meetings should be consistent throughout Town.
  • Public meetings require public access, but do not require that the public participate. (Access means that the public can observe the proceedings-usually in real-time).
  • Public hearings require the Board to solicit public input and permit public participation.
  • For many Milford boards, the invitation to speak is a long-held agenda line item.  Remote meetings comply with the executive order of the Governor and Open Meeting laws, but, because of limitations of technology, do not afford the same opportunities for the public as in a pre-pandemic era. 
  • Although the First Amendment of the United States Constitution protects the freedom of speech, some speech, including threats and inflammatory speech, illegal expressions, and speech with certain adult content are regulated, and have no part in public meetings of government. 
  • Because meetings are now held remotely, the constraints against unlawful speech are necessarily limited to whatever protections are afforded by our remote access technology, and by our ability to master the use of the technology. 
  • Technology supporting remote meetings, such as Zoom, provides "waiting rooms”, muting, controlled screen-sharing, and some ability to disconnect callers, however meetings have been intruded upon by anonymous individuals who promote offensive language and conduct such as child pornography.  So-called Zoombombing occurred recently with the Milford Public Schools.  The technology is not fool-proof.
  • The FBI provided guidelines to communities that, when implemented, would prevent unfettered access through invitation to speak while in a remote meeting, please see the FBI press release on teleconferencing and online classroom hijacking.
  • Milford boards and commissions should protect the public and the integrity of their meetings by following the FBI guidelines, including not sharing or publishing teleconference numbers for public meetings to prevent unintended dissemination of unlawful speech or content.
  • When a public hearing is required, teleconference numbers should be published only for use during the hearing portion of the meeting, and must be monitored closely by a third party (IT professional) to allow immediate interruption of the broadcast if illegal speech is submitted. 
  • The public should also be encouraged to participate in public hearings by writing to the chair in advance, and having that communication read into the record, particularly if the individual or the public finds the technology daunting. 
  • Callers to public hearings are closely monitored by Town staff.  This method complies with the legal need to solicit public input, while preserving, as much as possible, the proceedings free from illegal content.  The monitoring of such hearings by IT employees is taxing on the Town’s scant resources, and is also not foolproof.