The restriction on gatherings of ten or more people was first introduced in the Ohio Department of Health (ODH) Director’s Mar. 22 “Stay at Home Order.” The ban on gatherings of ten or people has been extended through various orders and an exception was never given to boards of education.  

On Nov. 16, 2020, the ODH Director issued a new Order, “Revised Order to Limit and/or Prohibit Mass Gatherings in the State of Ohio, with Exceptions.” The Nov. 16 order states in Section 5 that the prohibition on gatherings of ten or more people does not apply to “governmental meetings, which includes meetings that are required to be open to the public pursuant to R.C. 121.22.”  Board of education meetings are among the meetings required to be open to the public. 

Previous to the above order, board of education meetings were prohibited from having ten or more people physically present for meetings. This new order allows boards of education to have the style of meeting they feel most comfortable running.  Boards can now have meetings completely in-person with social distancing and wearing masks, some members are in-person and some attending virtually, or all board members attending virtually. A board still must abide by the requirements within Ohio House Bill (H.B.) 197 to hold a virtual meeting or have any or all of its members attend via teleconference or videoconference.

H.B. 197, Section 12, (the section that allows for virtual meetings) has an expiration date of Dec. 1, 2020.  However, the general assembly passed legislation, Sub. H.B. 404 that extended the virtual meetings provision until July 1, 2021.  While the Governor has not yet signed the bill, it is anticipated that he will do so soon.

UPDATE: Gov. DeWine signed H.B. 404 on Nov. 23, 2020. Because the bill contained an emergency clause, it was effective immediately upon signature. 

What happens when the legislation expires on July 1, 2021?

Unless the General Assembly decides to pass legislation allowing the use of virtual meetings to extend beyond the current emergency, the governing laws would be R.C. 121.22 and provisions in R.C. Chapter 3313.  This would mean a majority of board members need to be physically present to form a quorum. Members attending virtually would not be counted for quorum or voting purposes and wouldn’t be paid. A meeting where all or most members were virtual would no longer be viable as a quorum would not be created. So, the options dwindle to completely in-person meetings or a quorum of members present and the minority virtual. In the second case, members attending virtually are only involved in deliberations. 

Can my county health department limit board meetings to ten people or less?

Yes, county boards of health can be more restrictive than the state orders. In that case, the exception in the ODH order would not apply, although the county could make a similar exception. An option if your county board of health limits to ten people or less without an exception for government meetings is to again revert to previous methodologies of overflow rooms holding ten or less persons with closed circuit televisions for viewing. 

As always, the OSBA division of legal services continues to monitor these orders and will post information as it becomes available. If you have questions, please contact the division at 1-855-OSBA-LAW. Also, OSBA division of legislative services continues to monitor the general assembly and will post in “Facts in a Flash” as it becomes available.

Posted by Ralph Lusher III on 11/20/2020