Online sessions – are they compliant with the law?

From the beginning of the pandemic local governments had to face up to a difficult problem – how to organise council sessions in a safe way, at the same time without breaking regulations. It turns out it is not that simple.

When the pandemic broke out, there were no dedicated regulations in force that would change the previous rules for conducting the council’s or its commissions’ sessions. Despite this, opinions appeared that, due to the situation connected with the spread of the coronavirus in Poland, meetings could start being organised online, excluding the public who – instead – would be guaranteed a transmission from the meeting. It should be pointed out, at the same time, that an online transmission from the meeting has anyway been and continues to be an obligation arising from the Act on the Local Government (Article 20 (1b)).

The communes which decided to adopt this solution explained their actions differently. In most cases it was simply a decision by the council chair who has statutory competences to organise a meeting (Article 19 (2) of the Act on Local Government). The second basis was § 11 of the Regulation of the Minister of Health of 20 March 2020 concerning the announcement of the state of epidemic within the territory of the Republic of Poland, referring to the ban on the organisation of assemblies (within the meaning of the Law on Assemblies). The last argument regarded orders issued to local councils by the Prime Minister/Voivod on the basis of provisions of the so-called first Act on Coronavirus.

At this stage we prepared an opinion in which we analysed regulations and came to a conclusion that the restriction of the right of access to council meetings would only be possible if the state of emergency were to be declared (Article 228 (1) and subsequent articles of the Constitution of the Republic of Poland). In our opinion, there was also no possibility for conducting an online session, unless provisions of the Constitution of the Republic of Poland and the Act on Local Government were to be changed.

Several days later, however, provisions of the above-mentioned regulation of the Minister of Health of 20 March 2020 changed. A temporary ban on travel and a ban on assemblies and other events, get-togethers and meetings was introduced, regardless of their type. In this case we assessed that provisions were very imprecise and they did not refer to the organisation of a session.

On 31 March 2020, Article 15zzx was added to the Act on Coronavirus, and since then it has constituted the legal basis of the organisation of online sessions or correspondence sessions (remote session procedure). Contents of the provision are presented below:

  1. During the period of the state of epidemic threat or the state of epidemic, the decision-making bodies of local government units and collectively operating bodies: executive bodies in local government units, in unions of local government units, in a metropolitan union, in regional clearing houses, local government appeal boards and in auxiliary units of local government bodies may convene and hold deliberations, sessions, meetings, gatherings or other forms of activity appropriate for those authorities, as well as make decisions, including resolutions, using remote communication methods or by correspondence (remote session procedure).
  2. A remote session is ordered by the person authorised to chair the given authority constituting a local government unit, and another entity that operates collectively.
  3. Provisions of paragraphs 1 and 2 shall apply accordingly to collective internal bodies, such as committees and teams, operating in decision-making bodies of local government units, and authorities operating collectively.

Despite the fact that the legal basis for the remote sessions has appeared, problems remain.

Firstly, this is still about the serious doubt whether all this can be organised using the provision of the special purpose law, and whether similar restrictions do not require the introduction of the state of emergency, change of provisions in the Constitution or the Act on Local Government.

Secondly, sessions previously used to be held offline, therefore statutes of local communes were adapted to such meetings. Now local councils are starting to organise online sessions because the provision of the special law allows them to do so, but they fail to amend their statutes. As a result the only certain thing is that the session is to be held online. Other rules for conducting a session (e.g. the method of convening it, the ability to speak, discussion on draft resolutions) depend on the chair who will not be able to use at least partly unsuitable provisions of the statute. So what remains is for the chair to ignore such rules and conduct sessions spontaneously.

Thirdly, the organisation of an online session, and even more so – a correspondence vote, precludes the access by the public, and thus impacts the right arising from the Constitution (Article 61 (2)). Of course, there have already been comments that the public can be satisfied with a transmission of an online session. We, however, believe that the sense of this right is deeper, and “access” means something more than just passive playing of a recording. Besides, it has turned out in practice that some local authorities have been unable to guarantee even a transmission of online sessions. Another issue is the fact that the correspondence voting procedure completely rules out watching such a “session”, as it comes down to casting a vote on a resolution and placing a ballot paper in an envelope.

Session without picture and sound

In one of the rural communes, a session was planned using the remote system. A client of our legal advice bureau submitted a request to the council chair to enable her to take part in that session (she cited Article 61 of the Constitution, provisions of the Act on Access to Public Information, and Act on Local Government). In reply, she received information that the next council session would be held remotely and in that case there would be no possibility of physical participation by residents in the debate. Until the date of the session, however, residents were able to submit by email questions to the wójt (commune head) that would be read out together with responses during the debate. Additionally, the session would be transmitted. It was also added that the submission of electronic data for the remote participation in the session was impossible for technical reasons. The program in which the session was to be provided would be available only for the councillors. In the end, the remote session was held without any sound and picture (the councillors used the chat window to write). The client is considering submitting a complaint to the voivod against the actions of the council (council chair).

Offline session but without residents

We have also received a question on how to reconcile the possibility of a remote session with ensuring access to such session. There have been cases in which an online session had been planned but it was not recorded or made public in any way. There were even more far-reaching cases when the session was held offline but no public was permitted to attend. In the case of sessions under the “normal” procedure we have already warned that, in our opinion, there is no legal basis for closing the session and refusing to admit residents. We have also sensitized to the fact, however, that the regulation of the Council of Ministers on the establishment of specific restrictions, orders and prohibitions due to the state of epidemic is in force (regulations of the Council of Ministers replaced the regulations of the Minister of Health mentioned previously), in which any gatherings, get-togethers and meetings are prohibited. There is no certainty as to the interpretation of the regulation, and therefore there is no certainty whether a person planning to attend a session is not potentially subject to a fine for the breach of the ban.

Commands to vote

A councillor from one commune received a text message that an extraordinary council session would be held remotely on the following day. The materials were supposed to be waiting in the voting system, and questions concerning resolutions were to be sent in writing to the commune head. On the date of the session the councillor was obliged to notify the chair by phone that he/she was taking part in the session. In the end the session was held, but without an online transmission for residents, as well as without any sound and without picture recording for councillors. During the session only commands to vote appeared. The session was recorded by the councillor himself.

Correspondence vote

A councillor from the Kozłów commune received information that the council chair had ordered that the next session would be held remotely through a correspondence vote. In subsequent letters, the chair explained that the councillors were to vote on packs delivered which would then be collected by an authorised employee from the office against a signed receipt. The packs could be handed over by councillors or by members of their households. The failure to hand over a pack was to be tantamount to lack of participation in the session convened. Residents were only notified of the fact that the session had been convened and would be held through a correspondence vote. The transmission covered exclusively the counting of votes from envelopes placed in the room included in the recording (recording available in the Public Information Bulletin). The councillor submitted a petition to declare the resolutions adopted during the session null and void, but the Warmia-Mazury Voivod decided that the session had been convened and conducted in a correct manner. Which is more, the Voivod decided that the council had no right to make changes in the statute that would refer to the remote session procedure.

Session without the public? Let’s get rid of the village council fund!

The Chair of the Municipal Council in Przedborze convened a session in the office seat but excluded the presence of the public and village leaders in the meeting room. Which is interesting, as the local councillor reported, a resolution concerning the removal of the village council fund for 2021, and this without the consent of village leaders, was being adopted at that session. Thus the village leaders were excluded from the discussion of the case which referred directly to the fate of their villages. The council submitted a complaint against the chair to the Łódź Voivod, but he, however, deemed it groundless and stated that the chair’s actions were lawful, and the openness of the session was ensured by the announcement of its online transmission. Another councillor reported in turn that in his commune sessions were being cancelled (beginning of the epidemic), and it was only until 31 March 2020 that the council had time to adopt a resolution on the village council fund.

As regards the village council fund, an official from one commune wrote that for obvious reasons villages were unable to utilise funds allocated to the planned tasks connected with social integration. Village residents wanted to change undertakings so that the money was not lost, but the possibility of calling a village meeting was doubtful due to the ban on all assemblies and meetings that has already been mentioned before. Although it should be assumed that Article 15zzx covers also village meetings, i.e. a village meeting may also be held in a remote session. The problem, however, is such that the authorities of auxiliary units may be unprepared to conduct such session online, and their organisation would require the adaptation of provisions of the village’s statute. This problem was also pointed out by the Ombudsman, but his intervention was not met with understanding on the part of the Ministry of Interior and Administration. They responded that villages could reorganise their work in such a way so as to hold sessions remotely. The Ombudsman asked further whether the conducing of a village meeting under a “normal” procedure would not constitute a breach of provisions of the regulation of the Council of Ministers. Eventually, in the response of 8 June 2020, a reference was made to another regulation of the Council of Ministers of 29 May 2020 currently in force, concerning the establishment of restrictions, orders and prohibitions in connection with the state of epidemic in which the organisation of meetings and gatherings of up to 150 persons was already permitted.

Status as of 1 July 2020

Translated for the project: Enhancing Local Level Democracy and Participation in the Post-Pandemic period in CEE (2021-2023) by K-Monitor (HU), Oziveni (CZ), Citizens Network Watchdog Poland (PL) and Funky Citizens (RO)

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