The March 25th headline in the Vail Daily was one any Mayor would dread, “Avon Council gets hacked, forced to reschedule meeting: Mayor ‘Deepest apologies for any disturbing content you may have witnessed.” Avon learned about video conferencing the hard way. They will not be the last local government to learn a lesson about how to manage public participation in the era of COVID-19 distancing and shelter in place orders. I am the Executive Director of NWCCOG, an organization that represents 28 of these entities and nearly all of them have just begun experimenting with various platforms for electronic or virtual meetings.
Prior to deciding to go electronic. Town of Avon staff and council had discussions about what parameters they desired in moving public meetings to a virtual platform during the COVID 19 response, Council had suggested that they wanted a platform for citizens to communicate as freely as they would in a live meeting, and shared the change of platform with as many as possible through a link blasted out without a security code on social media. The lesson took about 5 minutes of a meeting to painfully learn. There was swearing and nudity.
Apparently, because of utilizing a cheaper version of Zoom Meeting, a remote attendee was able to take over the desktop and was screen sharing porn and profanities. Staff and elected officials were on the meeting 15 min early taking up many of the 99 maximum connections before the disturbance. Within 5 minutes of the posted start time, the call was “bombed” according to Robert McKenner, Town of Avon IT Manager, and after a couple of minutes of this, it was closed. The clerk opened a second private meeting to staff and council to discuss how to proceed. Paul Weiser, Town Attorney, recommended because the meeting had not yet begun that they reschedule the meeting for two days later. Though Avon had no way to track who else was on the call, there is speculation that not many citizens witnessed the shocking 5 minutes. Whoever did might have trouble “unseeing” what they saw.
The day after, McKenner, Town of Avon IT Manager circled back with colleagues in Vail and elsewhere and decided to go back to his earlier preference for a higher security platform. In a day, the Town of Avon went Pro which upgraded control and security settings. Following what Vail is doing, Avon is not taking comments over the phone, only taking comments via email. McKenner said that Council ran yesterday’s meeting through Zoom Meeting Pro, with webinar add-on with 100 gig storage. It is the platform being used for employee meetings. There are three different log-ins with distinct levels of control: the host, panelists, and attendees. Attendees know about meeting through legal postings for agendas. They click on a link after passing through a registration page to Zoom. Attendees can only virtually raise hands. They can be given permission to talk which can be turned off. They can also be promoted to a panelist who can share screens. They have no control. Panelists can be demoted to an attendee. Attendees and panelists can be kicked out. A Question box can be used. So far Avon is not utilizing the running dialogue box. Like many of the larger municipalities and counties, Avon Council meetings are filmed live and broadcast on local PEG Channel which has a 5-minute delay behind Zoom, so the council is learning to wait for comments to come in before moving to next agenda item.
Just down the road at the Town of Eagle, the same Tuesday as the Town of Avon meeting, Eagle was utilizing emergency powers adopted at the prior meeting which included a Remote Meeting Policy. They started their meeting using a platform called Crowdcast which was used in prior years by an employee who “hosted educational meetings worldwide” with a previous employer. The town changed platforms less than halfway through. According to Manager Brandy Reitter, they switched to Zoom Meeting mid-meeting due to technical difficulties. As Reitter noted in a phone call, making the change on the fly was just another adjustment town has had to make in recent weeks to adapt to COVID-19 restrictions on public gatherings and social distancing. Thursday morning, the Governor of Colorado issued a shelter in place public health order. Remote public meetings may become the norm for a while.
This past week, Northwest Colorado Council of Governments (NWCCOG) sent an email to 28 municipal and county managers with brief questions related to how they had changed operations related to public meetings, elections, and staffing. We followed up with phone conversations with managers. The responses were interesting. Most town halls are physically closed to the public. Nearly all are hosting virtual or remote public meetings on one platform or another. Red Cliff appears to be the only town planning to continue holding public meetings with the public attending with only social distancing as a protocol. Town Administrator, Barb Smith says, they rarely have more than 40 voters, and only a fraction of those ever attend a meeting. Kremmling is holding meetings at Town Hall and requesting that the public watch from home via Facebook streaming. Their “attendance” increased as a result. Blue River and Steamboat Springs have a similar approach with the board attending in person, distanced, and the public participating via GoTo Meeting. Each town has a slightly different approach to public speakers who want to be heard. Silverthorne, Vail, Aspen, and Winter Park are all requesting comments and questions be submitted by email prior to the meeting and are read in the meeting. In other words, they are all learning on the fly.
For public entities, public notice, posting, and structured public participation are a legal matter. Most are new this month to virtual platforms. They are empowered to make this adaptation to continue operations through the enaction or adoption of emergency powers. For the bulk of public business, as long as there is an adopted standard (emergency) operating procedure or policy which is adhered to, public entities can continue in their legislative function (bill paying, adopting ordinances for regular town business) with different standards for public participation. Many drafted policies related to this are new within the past 30 days. A handful of towns have not yet held their first meeting under the new policies as if this publication.
In discussing the challenge of preserving due process for applicants as well as the public, among managers, there is a concern especially about quasi-judicial proceedings such as land use files or liquor license hearings where the formality and legality of the proceedings have a higher standard. For those wishing to read the actual documents of “Best Practice” policies adopted by municipalities, I recommend this page on the Colorado Municipal League (CML) website, and for those seeking guidance on conducting electronic meetings, I recommend this document by CML General Counsel, David W Broadwell. When and if public entities are sued for these practices, most will turn to CIRSA which insures most municipalities in Colorado. This is what CIRSA Executive Director Tami Tanoue has to say about this rapidly evolving new situation.
May there be no more virtual meeting coup d’etats such as Avon experienced. Even technical difficulties can erode public trust, which especially these days, is precious.
Public attorneys have resisted electronic voting and remote participation by board members for years for a variety of reasons involving preserving the legal integrity of decisions made through the public process. Being present matters. Many boards that could adopt such policies during normal times have resisted allowing a board member to email or call in for a vote if for no other reason than the importance of being accountable in-person to the public. These are not normal times. It will be interesting if some public officials shift on that after this COVID change to demand they can represent the people in their pajamas. Hopefully, that is not what is being learned.
As the Kremmling experience shows, there could be an up-side for public engagement. Over the past decade, having meetings broadcast has become the norm, but having the public “participate” in the meetings remotely has been resisted. This situation very well may break that barrier since those same citizens are increasingly accustomed to paying bills, shopping or working at any hour of the day without having the inconvenience of having to go to Town Hall, sit for hours waiting for a board which rarely sticks to posted agenda times while have to suffer from their own bafflement or intimidation in figuring out how to participate in their local government. That barrier is worth breaking.
