Middletown PZC member raises ADA concerns about remote participation

Oct. 25--MIDDLETOWN -- An eight-year member of the city's Planning and Zoning Commission who participated in a meeting this week by telephone due to medical issues, said she was displeased when members publicly discussed her request for accommodations under the Americans With Disabilities Act.

Commissioner Molly Salafia, who has served two terms on the panel, gave birth to her daughter prematurely seven weeks ago by cesarean section. Both she and her infant suffered health consequences in the beginning, and as a result, Salafia is often weak and is concerned about driving to and from meetings at night, she said.

At the onset of Wednesday night's meeting, alternate Steven Kovach was seated in her absence. The panel then voted unanimously to suspend Roberts Rules of Order and Salafia was granted permission to teleconference into Wednesday's meeting, according to the videotape.

Salafia said she was uncomfortable that a vote was taken.

"With ADA, you don't set ground rules if a person needs accommodations. If they're an applicant or commissioner, you make a reasonable accommodation and that's it. You don't vote on it," Salafia said.

"I could hear every word of the meeting. I was fully engaged," she said.

Planning, Conservation and Development Director Joseph Samolis emailed commissioners earlier in the week, saying he sought an opinion on the situation from the general counsel's office.

"Legal has told me that commissioners/committees can participate remotely as long as they are able to view all materials pertaining to the application and as long as there is no conflict with the agency bylaws," he wrote.

PZC Chairman Stephen Devoto said Thursday that "There were no questions or comments that challenged remote participation by Commissioner Salafia" at the meeting.

"Commissioner Salafia chose to make comments about her medical condition during a discussion about changing our bylaws, not during a discussion about providing accommodation. We had already voted unanimously to provide such accommodation, which is why she was able to make those comments in our meeting," Devoto said.

The panel also agreed to discuss remote participation at its next meeting.

But Salafia said she felt uncomfortable when a couple of commissioners expressed concerns at Wednesday's meeting about setting a precedent.

Commissioners Beth Emery and Richard Pelletier voted yes on the accommodation, but said they did so reluctantly, according to a video of the proceedings.

"While I think that it's appropriate to have more participation on this commission, I would also urge us to strongly look at what others have done. I would be concerned with the number of times that somebody can participate remotely. There has to be a cap on that," Emery said at the meeting.

When she attends city meetings, Emery said she wants to see elected officials seated there .

"I fully expect to look in the eyes of those that are representing me," Emery said, adding that, if an individual needs accommodations for long periods of time, "I think you miss something. ... The public can't speak at home. I think we should expect that same thing of our elected officials. It's part of what we do."

"My fear is that if electronics get good enough, and there will never be a time when we need an alternate. We will have three people who are elected and can't do anything," Pelletier said, according to the video. "That would be a very troublesome thing."

But Salafia, who is out of work on the Family Medical Leave Act, which allows people to take up to 12 unpaid weeks off from their job, said "I'm not 100 percent."

"For ADA, there's no reason to amend any bylaws. You just do it. You make reasonable accommodations. ADA supersedes any bylaws of any commission. It could be anything as simple as getting a commissioner a chair they need to sit in," Salafia said.

Devoto said his overarching concern lies in the possibility of future legal action related to remote participation -- not just in this incidence.

"We make decisions that are sometimes challenged in court, so we have an obligation to make sure our procedures can withstand any legal challenge. As chair, I take that responsibility very seriously," he said.

Christopher Sugar, a labor law attorney and alternate on the commission, weighed in on the issue Thursday in an email to commissioners and planning department staff.

"I am deeply troubled by the suggestion of a couple of commissioners that providing a reasonable accommodation (which was approved by legal and is required under the law) is being challenged by this body (and worse) that this body is considering for even one second imposing obstacles to prevent individuals with disabilities from participating in government," he wrote.

The ADA offers "people with disabilities the chance to participate in the mainstream of American life," Sugar said in his email. "This is commonly known as the 'integration mandate,' and means that public programs, services and activities must be made accessible to qualified people with disabilities in the most integrated way appropriate for their needs," he said.

"To comply with the ADA's integration mandate, public entities must reasonably modify their policies, procedures or practices when necessary to avoid discrimination," Sugar said in the email. "If you can hear and you can do everything appropriately, it's not on the commission to decide if another commissioner is voting fairly. The commissioner decides for themselves if they need to recuse themselves or not."

Devoto said he wasn't aware of Salafia's situation until she spoke at the public meeting by phone and shared personal details about her health and that of her daughter.

"I have always supported maximum participation by people in our governmental processes. Molly decided to publicize her medical situation. It's not something I would have done," Devoto said.

But this wasn't the first time elected officials have taken part in meetings via teleconferencing. In early 2016, Board of Education member Deborah Cain requested to participate by phone because she was out of the country due to work commitments.

That March, the school board enacted a policy that allows members to attend meetings remotely.

Meanwhile, Salafia anticipates being able to attend future meetings.

"My daughter is getting better and I'm getting better," she said.

Salafia said that during her pregnancy, she missed three to four meetings, but had alternates seated in her stead.

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