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Legal Advice

This publication is intended as an information source for clients, prospective clients, and colleagues. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Municipal Update: Virtual Meeting Provisions Extended

ExecutiveOrder_EO_generic_heroEarly on in this public health emergency, the Governor suspended and modified certain provisions of the Open Meetings Law to permit meetings to be conducted remotely.  The provisions of the Executive Order making those suspensions and modifications was later extended through May 7, 2020.

The Governor was expected to further extend these provisions, but as of the close of business on May 7, 2020, they were not extended.  But, late last night–on May 7, 2020–the Governor issued Executive Order 202.28.  The order provides among other things that the “suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to and including Executive Order 202.14,” are continued for thirty days until June 6, 2020.

The Open Meetings Law provisions were initially suspended and modified by Executive Order 202.1, and initially extended by Executive Order 202.14.

There were numerous other provisions of law that were suspended and modified by Executive Order, and some of those provisions have also been extended by Executive Order 202.28.  I should also note that Executive Order 202.28 includes some exceptions and further suspensions and modifications, and one should not assume that it applies without reviewing the language for your particular concern.

If you would like to schedule a consultation to discuss the Open Meetings Law or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

 

 

 

Municipal Update: Public Hearings Postponed by Executive Order 202.15

ExecutiveOrder_EO_generic_hero By now most local governments should be conducting their meetings remotely.  The Governor suspended certain provisions of the Open Meetings Law in Executive Order 202.1, permitting public bodies to meet and take action without permitting in public in-person access, and also permitting such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding, and that such meetings are recorded and later transcribed.  These modifications were originally set to expire on April 11, 2020, but were subsequently further extended by Executive Order 202.14 through May 7, 2020.

On April 9, 2020, the Governor issued Executive Order 202.15, which postponed certain public hearings without prejudice. With respect to public hearings, the Order provides as follows:

Any local official, state official or local government or school, which, by virtue of any law has a public hearing scheduled or otherwise required to take place in April or May of 2020 shall be postponed, until June 1, 2020, without prejudice, however such hearing may continue if the convening public body or official is able to hold the public hearing remotely, through use of telephone conference, video conference, and/or other similar service.

Information about this and other COVID-19 Executive Orders may be found here.

If you would like to schedule a consultation to discuss the the impact of this Executive Order or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Municipal Update: Non-Public Bid Opening Permitted During COVID-19 Emergency

ExecutiveOrder_EO_generic_hero

On March 7, the Governor issued Executive Order 202, declaring a State disaster emergency for the entire State of New York.  Over the course of the next several weeks, the Governor has issued updates to the original Executive Order.

On Friday, March 27, 2020, the Governor issued Executive Order 202.11.  Fire districts and other municipalities should be aware of one change with respect to public bidding that was included in that order:

Section 103(2) of the General Municipal Law, Section 144(1) of the State Finance law, Section 376(8)(a) of the Education Law, and Section 359(1) of the Public Authorities Law to the extent necessary to allow the non-public opening of bids; provided, however, that where practical, public entities shall record or live stream id openings so that the public has the opportunity to view such bid openings….

The statutory provisions referenced in the Executive Order are temporarily suspended or modified through April 26, 2020.   Information about this and other COVID-19 Executive Orders may be found here.

If you would like to schedule a consultation to discuss the the impact of this Executive Order or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Open Meetings Law: Telephonic Participation Permitted During COVID-19 Emergency

 

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Image by Mohamed Hassan from Pixabay

On March 12, 2020,  Governor Cuomo issued Executive Order 202.1, suspending and modifying laws relating to the COVID-19 disaster emergency.  One of the laws this Executive Order modified was the Open Meetings Law.  In an effort to reduce public gatherings and foster social distancing, the Open Meetings Law has been modified to permit attendance by telephone conference or by other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed….

While the Open Meetings Law always permitted videoconferencing, the law also required the public body to “provide an opportunity for the public to attend, listen and observe at any site at which a member participates.”  Executive Order 202.1 changes that provision and expands it to include participation by telephone conference.

Members of the public need to be provided access to the telephone conference or video conference information, so they can listen and observe the meeting, and the meeting needs to be recorded and later transcribed.   But, members of the general public have no right to participate in the meeting beyond listening or watching.

Executive Order 202.1 indicates that it will remain in effect for thirty days until April 11, 2020.  However, it is possible that it may be further extended.  Information about the Governor’s Executive Orders may be found here.

If you would like to schedule a consultation to discuss the Open Meetings Law or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Fire District Training Materials

AFDSNYLast weekend, I was honored to teach the state-mandated fire commissioner training course on behalf of the Association of Fire Districts of the State of New York in Allegany, New York.  As a follow-up to that training, I wanted to provide some links and additional information about the supplemental materials I discussed during my presentation.

Over the course of the training session, I made reference to both the Freedom of Information Law (FOIL) and the Open Meetings Law (OML).  Both laws apply to fire districts, and there is a lot of very useful information about these laws published by the Committee on Open Government, an agency within the New York Department of State.  For example, there is an advisory opinion index for each of these laws, as well as a model FOIL policy that is a good resource for developing or revising your district’s policy.

The New York State Comptroller’s Office is another indispensable resource.  The Comptroller’s website includes a page dedicated to fire districts.  Here, you will find links to recent fire district audits, a model form RFP for auditing services, and a model code of ethics.  You can also download a PDF copy of the Comptroller’s Accounting and Reporting Manual for Fire Districts if you do not already have a copy.  You may also wish to subscribe to the Comptroller’s weekly email newsletter, which often includes links to new fire district and other local government audits.

Other resources available from the Comptroller’s website include:

The Association of Fire Districts of the State of New Yourk also has numerous guides, model policies and newsletters available on its website to help you carry out your duties as a commissioner of other fire district officer.

During one of the breaks, I was asked briefly about fundraising, and I wanted to provide a citation to the applicable statute.  Fundraising by fire departments and fire companies is governed by Section 204-a of the General Municipal Law.  While a board of fire commissioners can prohibit or restrict certain kinds of fundraising activity, such action should not be undertaken without first consulting with knowledgeable legal counsel.

Finally, there was a discussion about the New York State Emergency Services Revolving Loan Fund.  More information about this program can be found here.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact me at 585.546.2500.

 

Enhanced Cancer Disability Benefit Regulations Finalized

fire service lawsOn October 17, 2018, the Division of Homeland Security and Emergency Services published a notice of adoption with respect to the New York State Volunteer Firefighter Enhanced Cancer Disability Benefits Program regulations.  The regulations were adopted as proposed.  A link to the Division’s website (here) contains links to both the regulations and the New York State Register.

The Register (starting at page 16) includes an assessment of public comment with respect to the proposed rules (including a response to each written comment).  Unfortunately, none of the comments resulted in any changes, and the regulations were adopted as originally proposed.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.

Revised Regulations Implementing State Environmental Quality Review Act Adopted

The New York State Department of Environmental Conservation recently announced that it has formally adopted revisions to the regulations implementing the State Environmental Quality Review Act (SEQRA).  The new regulations will become effective on January 1, 2019.

I expect to write another post summarizing the major changes shortly.  In the meantime, you can find out more information about the amendments on the DEC’s website.

 

Open Meetings Law Will Require State Agencies To Live Stream Meetings

It is about time that the State of New York finally catches up to what the town of Penfield is already doing!  For many years, local towns like Penfield have have broadcast public meetings over their local public access cable television stations.  Several years ago, Penfield began broadcasting public meetings–both hearings and work sessions–in full high-definition on the Internet.  Once that happened, you no longer needed to have access to the town’s cable access channel.  You can now watch meetings of the town, zoning, and planning boards from anywhere in the world–as long as you have Internet access.

On December 11, 2015, the State of New York enacted an amendment to the Open Meetings Law (L.2015, ch.519), adding a new subdivision (f) to Section 103 of the Public Officers Law.  Starting next month, open meetings of agencies (which for the purposes of this new subdivision generally include only state agencies) shall be broadcast to the public and maintained as records of the agency.  The new subdivision also generally requires agencies to stream such meetings in real-time, and post video of the meetings on the agency’s website within and for a reasonable time after the meeting.  One caveat, though, is that agencies are only required to stream and post the meetings if they already maintain a regularly and routinely updated website, and if they already utilize a high-speed Internet connection.  Don’t all state agencies maintain updated websites, with high-speed connections?  They should.

Even though the Governor was criticized for his recent FOIL vetoes, this amendment gives good government groups at least one small victory this term.  As noted by the sponsor’s memorandum in support of the legislation:

This legislation would help increase transparency by allowing people to virtually participate in open meetings, without imposing additional burdens on public bodies.  Moreover, making the content of these meetings easily available to the public would reduce the likelihood of repeated questions to the agency, the impact of misinformation, and the number of individual FOIL requests.

In the past, I have viewed live-streaming and archived video of oral arguments at the Court of Appeals.  Living and working more than three hours away from Albany, it would not have been practical for me to do that for the cases I was able to observe without the Internet capabilities of the Court.  The availability of live-streaming and video archiving now enables those of us in Western New York to more easily observe our government in action.  I am looking forward to the opportunity to observe the agencies in the executive branch from the comfort of my office in Rochester.  The amendment takes effect on January 10, 2016.

LOSAP Penalty for NY Public Employees Removed

Many fire districts have established Length of Service Award Programs (“LOSAPs”) in an effort to recruit and retain volunteer firefighters.  The service awards provided under these LOSAPs relate to credits earned annually by performing various volunteer firefighting functions for a period of years, and are generally paid on a monthly basis upon the participating volunteer reaching a certain age.

Previously, public employees who serve as volunteer firefighters were unfairly penalized, in that they were not permitted to earn any credit for responding to calls during the individual’s regularly assigned work periods.  Effective immediately, this penalty no longer applies.

The Memorandum of Support accompanying Chapter 535 of the Laws of 2015 notes the absurdity of the prior restriction:

Section 217(f) of the [General Municipal Law] precludes a volunteer firefighter who provides firefighter services (generally, emergency services) during his or her “regularly assigned work periods” from receiving LOSAP credit for those services. So, in spite of the increasingly desperate need to attract folks willing to undergo hundreds of hours of required training and stay active for many, many years to earn any marginally-significant LOSAP benefits, public employees are “dis-incented” from providing volunteer firefighter services for circumstances over which they have no control and which may already cause them significant employment-related penalties.

Thankfully, on December 11, 2015, the Governor signed legislation to repeal this penalty, effective immediately.

Seat Belt Use Required For Volunteer Firefighters

Volunteer Fire Fighters Now Must Buckle-Up!

Volunteer Firefighters Now Must Buckle-Up!

When New York’s Seat Belt Law was originally enacted in 1984, the Legislature exempted “authorized emergency vehicles” from the definition of “motor vehicles” whose operators and passengers had to be restrained by safety belts, because it was believed that the operators of these vehicles needed to be able to perform their duties in an “unhampered fashion.” However, that is about to change for volunteer firefighters.

On November 20, 2015, the Governor signed an amendment to the Seat Belt Law (Chapter 448 of the Laws of 2015), which now includes vehicles owned or operated by volunteer fire departments within the definition of “motor vehicles” whose operators and passengers must be restrained.  The amendment also applies to ambulances owned or operated by voluntary ambulance services as well.  However, the safety restraint requirements still do not apply: (a) to a passenger in the rear seat of a fire vehicle or ambulance if the seat is not required to be equipped with safety belts, nor (b) to emergency medical personnel during the course of providing patient care in the rear compartment of an ambulance in accordance with applicable patient care standards, guidelines and protocols established pursuant to the Public Health Law.

In support of this legislation, the sponsor’s memorandum noted:

The single largest cause of Volunteer Firefighter and EMS responder death is vehicle accidents to and from an incident scene. The largest contributor to those deaths is failure to wear seat belts.  Volunteers would like the current exemption removed from the law making New York law consistent with the training and operational procedures currently in place to promote seat belt use.

Use of seat belts promotes safety and saves lives. Since buckling a seat belt takes just a few seconds, fire and ambulance vehicles should be required to use them. This bill is strongly supported by the Fireman’s Association of the State of New York.

This amendment will not take effect until November 1, 2016.

 


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