SALEM — The School Committee's regular meeting Monday was difficult for the public to access, with a password needed to log on to the videoconferencing software used to hold the virtual meeting.
The password, however, wasn't included on the agenda and was posted to the city's website only after the meeting began.
Under any other circumstance, the meeting would've been illegal, deemed secret by restricting public access. But with the ongoing COVID-19 pandemic and an Open Meeting Law heavily modified by executive order, technological barriers like that seen Monday night represent a learning curve faced by public leaders, according to Justin Silverman, executive director of the New England First Amendment Coalition.
"Because there's such a learning curve in most cases, and the public is still being shut out of meetings, these officials should be doing everything they can to mitigate the damage from that secrecy and go above and beyond the requirements of Open Meeting Law," he said.
Under restrictions tied to the ongoing spread of the novel coronavirus, governing bodies have operated far from business as usual since mid-March. The same social distancing guidelines that have kept people from gathering in parks have also forced city councils, selectmen, and other boards from meeting in public to try and slow the spread of COVID-19.
On March 12, Gov. Charlie Baker issued an executive order modifying parts of the Open Meeting Law to accomplish exactly that. The law provides a framework of rules under which meetings must be properly advertised, accessible to the public and recorded for inspection and recordkeeping thereafter.
Baker's changes relieved governing bodies from the requirement that "meetings be conducted in a public place that is open and physically accessible to the public." Instead, they must make adjustments "to ensure public access to the deliberations of the public body through adequate, alternative means." That includes access "through telephone, internet or satellite-enabled audio or video conferencing," according to a summary of the changes on the state's website.
But those measures aren't set in stone. A group "that for reasons of economic hardship and despite best efforts is unable to provide alternative means of public access in real time may instead post on its municipal website a full and complete transcript, recording, or other comprehensive record" of the meeting.
"It doesn't mandate the committees provide public access. They're only required to do so if they can afford it and give their best effort," Silverman explained, "which in my opinion is a big loophole. That being said, there's a lot of room here for trial and error."
In Salem's case, these virtual meetings have seen some growing pains. A regular City Council meeting in late March was infiltrated by a small group of "zoombombers" in the meeting's chat functionality. A zoombomber is a person who joins live conferences on the videoconferencing platform Zoom for no reason other than to cause harm or interfere with proceedings.
A Planning Board meeting a couple of weeks later saw another zoombomber join the public comment and casually address the event's moderator — a city planner — by a slur before having his microphone muted and comment cut off.
In the case of this week's School Committee meeting, committee chairperson and Mayor Kim Driscoll said that password protection was set up as part of the city "doing our best to keep zoombombers off." But that effort "caused a few glitches in the beginning," she acknowledged during the meeting. The first 30 minutes of the meeting, roughly, was missed by The Salem News due to the password issue.
"The meeting was being recorded," Driscoll said, "and minutes will be fully available."
Silverman says the new rules around convening meetings aren't an open license to break Open Meeting Law.
"As a matter of law, we're in uncharted territory here," he said. "But I think the most reasonable expectation is if Gov. Baker didn't suspend a particular requirement of the Open Meeting Law, then that requirement still exists and every public body should be doing whatever they can to abide by the law."
One matter that affected the meeting Monday night was that of how members vote. Under the full law, "all votes taken during any meeting in which a member participates remotely shall be by roll-call vote."
Baker's executive order from March 12 doesn't address voting or how to record votes in any way. Alternatively, the state's summary of the changes concludes by saying that all other provisions not modified by the order "remain in effect."
The City Council and Planning Board, for example, have voted through roll-call voting, in their remote meetings. The School Committee, however, used voice votes in multiple instances Monday night.
"Most public officials are trying to do the right thing," Silverman said, "and I think we all need to be understanding of that."