Bossier City didn’t get new transparency requirements required under state law quite right. And other parish governing authorities haven’t even tried, in violation of that law, while some of those others have violated a different but related law for over a decade.
Last year, the Louisiana Legislature passed what would become Act 393 of 2023, effective last Aug. 1. This mandated for most state government boards and all local plenary governing authorities that they broaden their capacities for people with disabilities or their caregivers for direct participation in most meetings of those bodies, including those appointed or elected to such bodies.
The new law covers a lot so perhaps it’s no accident that Bossier City didn’t get around to changing its rules for compliance until its first meeting of this year, in conjunction with a change to its meeting dates. The new policy adopted enables both councilors and potential participants to participate remotely if the former “provide[s] a medical certification of disability on forms provided by the City Clerk” and the latter “complete[s] an application for remote participation and provide a medical certification of disability on forms provided by the City Clerk.”
Some discussion occurred around the “medical certification,” offered by Wes Merriott, a frequent commenter to the Council who has sued the city over his assertion that existing rules are facially unconstitutional – an area of the rules the Council didn’t address with changes – who said that the state’s Division of Administration had published guidance that said the Council couldn’t require such a certificate.
This refers to the model regulation suggested by DOA, which reads “Upon receipt of an accommodation request, the designated agency representative is only permitted to ask if the requestor has an A[mericans with]D[isabilities]A[ct]-qualifying disability or is a caregiver of such a person (yes or no). The requestor shall not be required to complete a medical inquiry form or disclose the actual impairment or medical condition to support a disability accommodation request.” Merriott alleged therefore that the new rule violated the law.
But in fact there is nothing in the ADA that prohibits a government agency from asking for this kind of documentation attendant to a public accommodation request if the supposed need is not obvious and the need on behalf of the public agency to evaluate and accommodate appropriately is necessary, as defined by that agency, with the exception of the use of service animals. Further, the DOA guidance is for rulemaking by state agencies and doesn’t apply to local governments.
Thus, Bossier City’s new rule on that score is compliant. The form released after the meeting asks for minimal information about a disability but does require documentation from a medical provider. Conveniently, it may be sent scanned by e-mail to the city clerk.
Regardless, the city does break the law in that, despite the explicit wording of the act that it applies to any “member of the public with a disability recognized by the Americans with Disabilities Act or a designated caregiver of such a person” (emphasis added), its new rule doesn’t cover caregivers. To a degree this is overcome by the form including caregivers as a covered category, but technically to be on the safe side the Council should amend its rules to comply.
At least Bossier City got that out of the way, even if incomplete. That puts it way ahead of other parish-wide entities solely in the parish governed by plenary bodies that levy taxes – Bossier Parish, the Bossier Parish School District, the Cypress Black Bayou Recreation and Water Conservation District, and the Bossier Levee District – as none have come up with rules to deal with the act, now four months late (it’s a bit difficult to confirm this in the cases of Cypress Black Bayou and the Levee Board, each of which are comprised of appointees from elected bodies in the parish, because for both they have not posted online minutes of multiple meetings since June and which violates the law).
However, their problems extend beyond accommodation. In order to make accommodation, information about the meeting must be made available so that those qualifying under the new law can know whether they want to participate in it and what to talk about. In the cases of Cypress Black Bayou and the Levee District, they will have to post online (or at the very least send by e-mail to any requestor) consistently and prior to the statutory deadline – which neither has – their meeting agendas.
Yet it should go beyond that, for a person with a disability or caregiver can’t really intelligently prepare comments if all they have to go upon is a single brief phrase that typically comprises a published agenda item. The law likely requires that for each agenda item that the public body also attach additional documentation describing the item, even if it as is simple as the entire text of the ordinance, resolution, regulation, etc. After all, it’s trying to simulate for those who can’t get to them because of disability the ability to stroll up to a clerk’s office prior to a meeting or at the meeting to receive public printed handouts, which would contain information like that.
Worse, both of these continue to violate a different but related law, R.S. 42:23. That makes optional for a public meeting to have it “video or tape recorded, filmed, or broadcast live.” But, “any nonelected board or commission that has the authority to levy a tax shall video or audio record, film, or broadcast live all proceedings in a public meeting” – which neither district, both of which levy property taxes, has been doing for over a decade since that statute went into effect, and a complaint about which under state law can be filed by any resident to the district attorney or attorney general for enforcement purposes.
It’s not an expensive proposition – for years, the Bossier Parish Police Jury has broadcast its meetings on the cheap using a tablet accessing Facebook Live with its frequent crashes, horrible audio that makes speaker identification difficult, and no way to discern who votes how, all of which the law lets it get away with. But it has to be done, and neither Cypress Black Bayou nor the Levee District are doing it.
The heightened pre-meeting information requirement also applies to the entities that are transmitting, the Jury and Bossier Parish School Board. The latter is (more often) hit or (sometimes) miss on this account, while the Jury is notorious for the paucity of information attached to its agendas, which it should correct to comply with the new law. Perhaps that will come about as it prepares to implement a presumably up-to-date transmission system in the Jury chambers.
Thus, the new law not only makes it easier for participation in meetings for some who up until now have faced almost insurmountable constraints but it also increases transparency for all. That is, if public bodies actually follow the law that to date most Bossier entities have refused to do so, if not related ones a couple blatantly have disregarded.