When can board/council members vote without being present? Interpretations vary on when remote voting is allowed post-Covid

Mebane city councilman Jonathan White was absent from the city council chambers during last week’s monthly meeting, but voted by phone seven times from Europe. In hindsight, Mebane city attorney Lawson Brown acknowledges that his initial assessment that White could vote remotely was probably a “mistake.” Most local boards and town/city councils do not allow remote voting.

Local government leaders tend to stick with the herd whenever they find themselves on uncertain legal terrain. Whether the issue du jour is law enforcement or religious expression, it’s rare for the officials from any locality to venture out on their own as they negotiate the figurative savannah of public policymaking.

Yet, this tendency to face danger en masse seems to have broken down when it comes to the advances in communication technology that have made it increasingly easy to transact official business remotely.

During the coronavirus pandemic, Zoom and other teleconferencing platforms became a way of life for many elected officials, who had the go-ahead 0to conduct official meetings using these tools thanks to state legislation passed in 2020. Last summer, however, the state rescinded the state of emergency that had allowed these conveniences to take hold, forcing local officials to either abandon these apps or hazard the legal repercussions that may accompany their continued use.

Since then, most local governments in Alamance County have reverted to their old policies, which required members of governing boards to be present in person in order to vote on matters of public import. But some decision making bodies, including the Alamance-Burlington school board and the trustees for Alamance Community College, have continued to let members cast votes from afar.

Meanwhile, at least one local municipality has also seen fit to allow remote voting for members of its city council – only to reconsider this position after a question or two from the publisher of this newspaper.

 

Call the experts
These jumbled positions among the local governments in Alamance County stem largely to a widespread uncertainty among legal experts as to whether state law even allows remote voting by members of local governing bodies.

For up-to-the minute advice on this sort of dilemma, local government leaders have generally turned to the faculty experts at UNC’s Institute of Government. Unfortunately, the institute’s sages have been far from clear on the question of remote voting – and this lack of clarity has largely been due to the ambiguity of the state statutes that lay out the powers of local authorities.

Prior to the coronavirus pandemic, Frayda Bluestein, one of the institute’s resident experts on local government, published a policy paper which offered city and county officials some guidance if they were daring enough to enter the legal morass of remote meetings.

In this 2013 publication, Bluestein noted that statutes pertaining to cities and counties are mum on whether a board member’s “physical” presence is necessary to establish a quorum.

She added, however, that the statute pertaining to city councils does mention “physical presence” in the context of voting, which she admitted “could be read to reflect a legislative intent that physical presence is required.” Bluestein also observed that North Carolina’s Open Meetings Law decrees that conference calls and electronic meetings are, indeed public meetings, which must be properly noticed and open to the general public.

“There would be no reason to include these provisions,” she adds, “if no public bodies have or could ever have authority to conduct a valid electronic meeting.”

In the end, Bluestein’s 10-year-old paper rendered no final judgment on the legal status of votes cast by off-site participants in local government meetings. Yet, she deems the practice reasonably safe as long as members who partake in meetings remotely aren’t necessary to establish a quorum and don’t end up casting decisive votes. Bluestein also advises cities and counties to adopt their own policies to lay out the rules for remote participation in absence of any direct guidance at the state level.

 

In walks Covid…
The legal minefield regarding remote meetings was temporarily defused in the opening months of 2020 when the General Assembly adopted rules to address the extended state of emergency posed by the coronavirus pandemic.

In order to avoid the potential spread of infection while ensuring that local officials attend to their duties, the General Assembly explicitly decreed that some, or all, of a governing body’s members could take part in meetings remotely. It also asserted that these remote participants were entitled to vote with the rest of the group and ought to be counted when quorums are calculated.

These special emergency measures were eventually discontinued when the state of emergency expired in August of 2022. But even before these provisions elapsed, the Institute of Government was already looking ahead to the day when the rules for local government meetings would revert to their pre-Covid defaults.

About a year before the state of emergency sunset, Bluestein offered a more cautious take on remote voting under the pre-Covid rules than she had proffered in her policy paper from 2013. In her brief, two-page post, Bluestein recalled that the voting and quorum requirements which predated the state of emergency “make reference to members having to be ‘present’ and ‘physically present.’”

“That fact suggests that remote participation is not authorized,” she continues in this online entry from July 6, 2021. “Further, there is also the fact that the [state of emergency] law specifically provides that board members participating remote[ly] count toward a quorum and when voting. There would be no need for these provisions if these boards already had the authority under existing law.”

Bluestein goes on to conclude that “city and county governments will have no clear authority to participate in remote meetings at all” after the state of emergency expired. Her declaration was later affirmed by a colleague who wrote a follow up post about local advisory boards and commissions in the same month that the emergency authorization elapsed.

 

On the side of caution
As per these purely advisory boards and commissions, the institute’s experts have found that, in the absence of specific state statutes, there’s a great deal more latitude for remote meetings than there is for electd boards and commissions. The institute has nevertheless advised local leaders to set down policies regarding remote meetings by their subordinate advisory boards.

Last year, Elon’s town council adopted just such a policy that allows members of advisory boards to vote remotely on the assumption that they wouldn’t abuse their right to “just phone it in.” Yet, the town council stopped short of granting the same authority to its own members, who are currently unable to vote during meetings if they aren’t physically present.

According to Richard Roedner, Elon’s town manager, the council was acting on the advice of its own legal counsel Bob Hagemann when it declined to invest itself with the power to cast votes remotely.

“It was our understanding that with the termination of the Covid emergency, we had to go back to the language that if you’re voting you need to be in the room,” Elon’s town manager Richard Roedner recalled the council’s consensus in an interview earlier this week. “I think I can speak for the council and say that their preference is to meet in person, and with the lack of clarity in statute they were protecting the town by saying…you need to be present to vote. If you can’t be present you can participate remotely but you wouldn’t be considered as part of the vote.”

 

Votes of concurrence
Elon’s wariness about the legality of remote voting has has generally seconded by other local governments in Alamance County.

Among those that have eschewed this practice is the county government itself, which has done so at the behest of Alamance County’s attorney Rik Stevens.

Stevens told The Alamance News that he initially advised Alamance County’s commissioners to abstain from remote voting when their chairman fell ill shortly after the state of emergency ended and had to use Zoom to tune into one of their regularly-scheduled meetings.

Alamance County attorney Rik Stevens

“I was asked if he could participate in any limited way,” Stevens went on to recall, “I started with the statute related to remote meetings during declarations of emergency [and found that] the authority for remote presence AND voting…is explicit and requires a declared state of emergency.”

Stevens added that other statutes, such as North Carolina’s Open Meetings Law, seemed to permit remote participation without any explicit reference to remote voting. As a result, Stevens advised the commissioners to permit their chairman to meet with them over Zoom as long as he did not vote, was not factored into the quorum, and delegated his duties as chairman to another commissioner.

In Burlington, city attorney David Huffman has suggested a similarly conservative stance shortly before the state of emergency ended last August. Earlier that same month, Huffman sent out a memo to the city’s top brass that specifically cited Bluestein to bolster his own legal conclusion that the council shouldn’t allow absent members to engage in legislate action at a distance.

“I suggest that a quick review of Frayda Bluestein’s July 6, 2021 article is adequate for [the] city council[‘s] purposes,” the city attorney added in his communiqué on August 9, 2022. “In short, local municipal governing boards, including the Burlington city council, will be reverting to the pre-COVID procedures for city council meetings. Namely, to participate in a meeting, you must be present.”

Huffman’s strict constructionist approach gets no objection from Bryan Coleman, one of Graham’s city attorneys, who has advised his city council that “members of local governing boards and appointed boards must be physically present to participate and vote in council and appointed board meetings. Likewise, Gibsonville’s municipal attorney Robert Giles has advised the town’s aldermen to refrain from voting remotely based on input from the Institute of Government.

Graham city attorneys Bryan Coleman (left) and Bob Ward.

“They have to be present to take part in meetings,” Giles told The Alamance News in an interview Tuesday. “Their policy requires that they take part in meetings, and we’ve contacted the school of government, which says it’s a reasonable policy.”

 

A more daring approach
The better-safe-than-sorry approach to remote voting hasn’t caught on with every local government body in Alamance County.

In fact, the members of the Alamance-Burlington school board and the board of trustees for Alamance Community College have been quite willing to continue the practice of voting remotely since the state of emergency elapsed. Yet, both of these groups also had policies which permitted remote voting long before the coronavirus pandemic.

In the case of ACC’s trustees, a policy that dates back to 2019 specifically allowed “any one or more members of the Board of Trustees” to “remotely participate in a meeting of the board of trustees by means of telephonic communications or other similar communications device.” This pre-Covid policy also permitted board members to cast votes remotely and credited their attendance toward the board’s legally required quorum.

Meanwhile, the Alamance-Burlington school board enacted a policy mere weeks before the pandemic that also allowed members to take part in meetings remotely. These rules authorize remote participation under circumstances that ranged from illness to employment obligations and scheduling conflicts. They nevertheless prohibit it “solely for a board member’s convenience or to avoid attending a particular meeting in person.” The school board’s policy also stipulates that off-site participants should be factored into the quorum and that they are entitled to vote unless they miss a particular item of business due to technical malfunctions or other issues.

 

Oops…
The absence of a similar policy didn’t prevent Mebane’s city council from allowing member Jonathan White to cast votes remotely during a meeting earlier this month.

White, who was visiting family in Europe during this regularly-scheduled gathering on April 3, was ultimately allowed to vote with his colleagues when he tuned in to that evening’s proceedings by phone. White’s inclusion in the meeting raised the eyebrows of Tom Boney, Jr., the editor and publisher of The Alamance News, who reminded the city’s leaders of the various positions that different local governments have taken on issue of remote participation.

Mebane city attorney Lawson Brown

In response to Boney’s inquiry, Mebane’s city attorney Lawson Brown insisted that White was entitled to vote with the rest of the council as long as the council members were individually polled on each matter that came up for a decision.

As it turned out, White’s vote didn’t tip the balance of any of the seven unanimous votes that the council conducted that evening. But the councilman’s remote participation nevertheless proved a bit more problematic than the city attorney had initially surmised.

In a subsequent conversation with Boney, Brown acknowledged that he probably shouldn’t have allowed White to vote with the rest of the council in light of the caveats that Bluestein had shared in her most recent post.

“I think I made a mistake,” he went on to tell this newspaper’s editor and publisher on Monday.