Government in the Virtual World: A Look at Public Meetings and Hearings
Land Use and Zoning Attorney, Javier F. Aviñó, discusses the impact that moving to virtual meetings has had on the public and private sector of the legal community, as part of the social distancing orders arising from the COVID-19 pandemic.
Transcript:
A. VICKY LEIVA
Welcome to Land Development in the 305, a podcast featuring news, observations, and analysis on the redeveloping and reshaping of South Florida’s skyline. I am Vicky Leiva; I am a partner at Bilzin Sumberg. And with me remotely is Javier Avino. Javier, are you there?
JAVIER AVINO
I am. Hi Vicky. It’s definitely different not being down the hall from you and not recording this from our regular studio, but we’re happy to adjust to this temporary reality and take advantage of everything that technology offers so that we can produce this podcast for our listeners. Today we’ll be discussing something that we think is top of mind for many folks, many of our clients, which is really how legislative, quasi-judicial, and public hearings are being conducted and what is sort of the stance or policy that governments, in general, are taking in light of this different environment and inability to actually meet live. So Vicky, what do you hear from both the government side of things and clients on this topic?
A. VICKY LEIVA
Well, it’s been quite interesting. For the last four weeks, since we had the governor’s emergency order that impacted public meetings, there has been certainly a lot of discussion amongst the legal circles as to how to deal with virtual meetings, something that everyone had in mind, but only some sections of Florida government had actually approved and adopted virtual meetings. And so I think that thanks need to be sent to the governor for acting on this issue as well as the attorney general’s office and definitely the city, county and local government law section of the Florida Bar. The county attorneys and the municipal attorneys have stayed very active, trying to find a consensus to this new concept of virtual meetings. And Javier, I think one of the things we need to talk about early on in this discussion is to differentiate between government meetings for the sake and to satisfy the needs of governance versus quasi-judicial meetings that have a private interest on an application that is processing.
JAVIER AVINO
I think that to further the distinction; I think that there is, you know, in the realm of public hearings and public meetings there are, you know, distinctions and things that we’re certainly looking at internally where items will appear before boards that are recommending in nature versus, you know, boards and commissions that require affirmative votes and public notice and public hearings in order to conduct business. So I think that you know, you’re absolutely right. You know, there should be a distinction or a conversation around the different buckets or different types of public meetings and what forms they come in because that I think will certainly indicate what areas can move forward and what areas may be requiring some additional thought as to how to process those matters.
A. VICKY LEIVA
And so if we start there, we need to identify that in the past Florida law required the elected officials not necessarily to be present but the quorum needed to be physically present and that was suspended by one of the emergency ordinances, the governor -- I believe it was 20-69 -- and what it allowed was for the elected officials to be able to hold meetings virtually without having a quorum physically present at City Hall so to speak. And so that allowed the virtual meeting to go on. As in most cases, when these emergency orders are issued, it’s the order that is given but not the details on how to proceed through the procedural aspect of it. And so that’s where the effort of the Florida Bar has been really very forthwith to bring the different groups together and to develop the procedures for having those virtual meetings. And of course, in having the virtual meetings for legislative affairs, the first few weeks or the first couple of weeks, it was more about allowing the government to meet for legislative purposes of carrying out the order -- the emergency orders -- that were being issued by state and counties and cities. And so in an overburdence of care, most of the meetings that have been held virtually have been special meetings called for the purpose for essential purposes of dealing with the emergency orders. As this has progressed and continued to develop, there are now more extensive agendas coming in at these meetings, and municipalities and counties have developed procedures that they are posting on their website. As to those who want to comment, how they do it, the videos that can be taped and sent into government, phone calls, or written statements, and those are made part of the public record where matters are being heard. And so mostly I think we could say that there are some substantive meetings that are being held for the essential issue. There are some meetings that are being held to deal with a full agenda. And then I think as we are four or five weeks into this process, there is now beginning to be some consensus that as far as quasi-judicial meetings, a virtual meeting may not be the best of all forums because there is really no way of swearing in witnesses, cross-examination, et cetera. And as a colleague reminds me, a challenge here would be a constitutional challenge of due process and -- and a court would always tend to receive a case based on constitutionality and proceed with it. So that’s kind of the breakdown of the meetings that we are seeing come to light.
JAVIER AVINO
And in a similar fashion there are some, and I’ve had conversations with a variety of municipal attorneys as well whereas time progresses, there may be an opportunity to continue
with certain meetings that are public meetings that are requirements such as architectural review boards, or you know business improvement districts and other boards that meet on a regular basis to provide feedback and input, there may be an opportunity for those to move forward, but as Vicky -- you know as you mentioned, the gravity of a constitutional challenge on the need and ability to be heard is one that really needs to be evaluated on you know, very seriously, when and if a decision is made to move forward with virtual meetings for those types of matters. And I think that’s what, you know, municipal attorneys, as well as the private sector, really need to evaluate because those sorts of challenges, long beyond approvals or disapprovals of matters, can remain as a challenge and so that’s why quasi-judicial versus legislative is so critical in this environment and the virtual meeting environment.
A. VICKY LEIVA
Agreed, agreed. And so when we get to this point is where we start doing that differentiation between the needs and the goals of government in giving access and even failure by someone to be able to feel that they are having full access to government. And what the repercussions can be of that are very different from those of a private application that can go through this process. And so if we look at that aspect of it, the government does its best, is careful, dots all the I’s and crosses all the T’s. The most important part for the government is to give notice of the meeting and make sure that its constituents and residents have a right to be heard. And so if the notice is clear, if the instructions are clear, if constituents and interested parties do use the facilities provided, then it is likely that the information in the meeting would be valid. But even in the worst-case scenario, if someone challenges the government and there is an appeal from an action, and the courts hear it, more likely than not, the end result is that the court will send back the outcome of that hearing for rehearing. And so the government is now looking very explicitly at making sure that when normalcy returns, all the actions that they’re taking by virtual meetings will be confirmed or reaffirmed at that time at a regularly held meeting. On the other hand, when we’re giving our clients advice as to whether to proceed or not proceed with their application through the process of a hearing and especially for those of us who practice in the land use and zoning areas where we’re dealing with quasi-judicial hearings, then we have to start differentiating between the virtual meeting for legislative purposes and the virtual meeting in a quasi-judicial situation. And I’m sure you can see the issues beginning to just kind of boil over, Javier, when we start splitting -- you know when we get to that fork in the road that requires us to split our path.
JAVIER AVINO
Absolutely, and it’s a major challenge all around because as agendas get pushed back, they get more packed with items, and it also becomes a question of timing. You know many projects and the goal of our clients, and likewise, you know, the government is to move projects forward, not to have them, you know, stay in a state of constant uncertainty. So there is a point in time where there is a desire to move some of these items forward, but as you indicate, there is a variety of factors that need to be weighed as to how and when the right time to proceed will be. And certainly, the longer that the status quo remains with respect to virtual meetings versus the ability to have meetings in person, there is no doubt that there will be some delay with the ability to get a matter before aboard and get finality to matters. So there are certainly a variety of factors here that need to be weighed in and including, you know, the advancement of technology itself as we move forward. You know I don’t think any of us imagined that we’d be conducting any of these meetings by you know in a virtual matter, and so there may be improvements that can be done that could start to bridge some of the gaps and concerns and create a more real-time environment, but that’s something that we’ll have to see how that develops as time progresses.
A. VICKY LEIVA
And I think that you know, there are some basic issues that we cannot remove from the arena, you know? And a grief party bringing a constitutional rights violation because, and let’s do some of the things we live with on a daily basis. You’re at the hearing, you’re having this virtual hearing, a resident gave a video or a remark, an audio remark that can not be longer than two minutes and sent it in based on how the project is at the time that it’s noticed. But off the record, commissioners dislike a particular aspect of the project or feel the project is too sprawled, and so he wants it taller and thinner, to have greater views, and requests the applicant to make a change to cut back the width of the building and add three floors. And those three floors are critical to a neighbor that has no ability to respond during that hearing to that change and so the hearing continues. The applicant agrees to the physical change to the project, and it’s approved with a physical change. And so what happens when that neighbor brings an action? And so we could create many, many scenarios of things that happen during the hearing and the limitation of that aggrieved party to be able to give additional comments to those changes. We could create a series of environments that then make the decision to go forward with one of these hearings, really more of a business decision with clients being aware of what can be the potential outcomes of holding the hearing. The individuals that I have spoken to or discussed this with in terms of other land use and municipal attorneys are all very concerned that perhaps are controversial projects or projects that don’t have consensus should be held until full meetings can be had after this Coronavirus process is over, but that those who have consensus or who are otherwise in agreement should go forward with virtual meetings.
JAVIER AVINO
And the issue with that Vicky as you know is that oftentimes you know there are projects that have, you know, perceived consensus all the way through and it’s not until a public meeting or a public hearing that you become aware of a potential sort of objection. You know your point is well taken that, you know, I think what I’m hearing to a certain extent is a hope or a desire that these matters can be addressed once meetings go back to in-person meetings because of a variety of these unknowns. I think you’re right that there is an attempt to try and bucket items into, you know, legislative versus quasi-judicial and then within the quasi-judicial world, you know, those which are sort of, as you mentioned, non-controversial items, you know, or ministerial to a certain extent versus those that require more robust conversation and dialogue and perhaps, you know, modifications to the request being made and so, you know, all those factors I think will play in as time progresses with our current sort of situation and the virtual nature of meetings.
A. VICKY LEIVA
Absolutely, so I think if we needed to envision the ideal situation for these virtual meetings, it would be that municipalities and counties have very clear instructions as to how you know, where is the script that we have to all rely on for moving forward with hearings from notice to accessibility by the constituents to be able to comment, to the ability to have a discussion on the government side? And then on the private side, on the applicant side, to be very clear about goals and times for the applicant to be able to balance between moving forward under the virtual meeting with the risks it involves and evaluating that versus the potential for a constitutional challenge that even if approved, may put the application in an appellate situation and so the desire to move faster becomes a substantive delay of an appellate procedure approved application. And all of these, of course, are difficult points to evaluate. It certainly has a lot to do with the basics of private applications, which are time, time, and time and the financial burden that that time implies to an applicant. So these are some of the things that going forward we need to keep in mind and certainly share with our clients as they look to normalcy returning to our system.
JAVIER AVINO
Interesting times, for sure.
A. VICKY LEIVA
Absolutely.
JAVIER AVINO
I don’t know that either of us ever thought we’d be dealing with virtual meetings for our purposes, you know, in our lifetimes that’s for sure. So it’s definitely an interesting time.
A. VICKY LEIVA
It certainly is, Javier. Thank you for your time. Thank you for your good counsel. Wish we were down the hall from each other.
JAVIER AVINO
Absolutely, but we still continue to be able to, you know, work together and work through these matters and -- and we will certainly have, hopefully, some additional insight as this develops and we want to thank everyone for listening to our podcast. If you want more on this or other land development related topics, please visit us at Bilzin.com and subscribe to our New Miami Blog at www.newmiamiblog.com. Thanks again.
