Across the country, individuals have been required or encouraged to limit face-to-face meetings and practice “social distancing” to slow the spread of the Coronavirus (COVID-19). In light of these guidelines, OSBA has received numerous questions regarding the applicability of Ohio’s Open Meetings Act (OMA) during the pandemic. Because these state directives are changing on a day-to-day basis, boards should consult with legal counsel before making decisions about their meetings.
Can we cancel our school board meeting?
Boards of education are required by law to meet at least once every two months. Although school boards typically meet more regularly than this, school boards may legally cancel school board meetings and reduce the number of school board meetings to the statutory minimum. There is no statute that outlines the procedures for canceling school board meetings, but boards of education generally should try to notify the public that the meeting has been changed. Posting the meeting cancellation on your website, sending notices to anyone on your meeting notification list, and alerting your local media outlets are good ways to notify the public.
Can we add a school board meeting?
In order to effectively maintain operations during the pandemic, it may be necessary for boards of education to hold additional meetings that weren’t scheduled at the organizational meeting. Boards of education are permitted to convene special meetings of the board for this purpose. In order to convene a special meeting, the board must provide notice of the time, place and purpose of the meeting. Written notice of the meeting must be served on each board member at least two days prior to the meeting day. Notice of the special meeting must also be given at least 24 hours in advance to news media that have requested notification.
Can we limit the number of individuals that attend our board meetings in-person?
OMA requires public bodies to take official action and conduct all deliberations upon official business in public meetings that are open to the public at all times. A plain reading of the statute reveals the legislature’s intent to require that all public bodies generally conduct their meetings “in the open” so that the public can have access to the business discussed or transacted therein. OMA does not specifically dictate how a meeting should be made “open” to the public.
On March 12, 2020, Governor DeWine announced that the Ohio Department of Health Director Amy Acton signed an order prohibiting “mass gatherings” (i.e. groups larger than 50 people) and urging individuals to maintain social distancing (approximately six feet away from other people) whenever possible. In light of this order, the Ohio Attorney General (OAG) issued a letter concluding that a public body may fulfill the requirement that meetings be “in the open” by streaming the meetings online or on television. Previous court decisions have also authorized school boards to set up “viewing rooms” on-site and provide ancillary access to meetings on closed-circuit televisions rather than providing in-person access to the board’s meeting room. This may also allow individuals to “attend” meetings of the board, while allowing them to observe social distancing.
Can a board of education hold its meetings electronically, with board members attending from remote locations?
In 2009, OAG issued an opinion that discussed the board’s ability to meet by teleconference. In that opinion, OAG held that because meetings of a public body are required to be open to the public at all times, a public body was prohibited from “conducting a meeting by teleconference or other means that prevent the public, or a majority of the members of the public body, from attending the meeting in person.” OAG also held that members of a public body were prohibited from attempting to circumvent the intent of the open meetings law by conducting a conference call and claiming it does not meet the definition of a “meeting” of the board because a majority of the members are not “present in person."
However, on March 13, 2020, OAG issued a letter concluding that in light of this unusual public health emergency and in response to the executive orders, “it is reasonable to read the OMA’s ‘in-person’ requirement as permitting a member of the public body to appear at a public meeting via teleconference.” OAG also stated its belief that a meeting could be made “open” to the public by live-streaming the meeting through the internet or on television.
Boards that choose to hold their board meetings electronically should keep in mind the following:
- A quorum must still be present, whether in person, on the phone, or in some combination thereof. In the event that a member appearing telephonically is cut off, the school board should cease all discussions and deliberations until the member can be reconnected.
- School boards must ensure that the public is able to hear the discussions and deliberations of all members, even those who are present via telephonic means.
- All other requirements of OMA apply, including those that govern executive session, noticing the board meeting, and the taking of meeting minutes.
- Board policies may contain language that conflicts with the guidance set forth in OAG’s letter. For example, OSBA’s model policy (BD, School Board Meetings) contains language stating that a board member who participates in the board meeting electronically may not vote at the meeting and will not be counted for purposes of determining whether a quorum is present. This language is based on the 2009 OAG opinion. Boards may also have policies in place that authorize public participation at board meetings. Boards should review their policies for conflicts, review the process the board has adopted for suspending policies (BFF, Suspension of Policies), and consult with legal counsel prior to making any change.
The procedures outlined in OAG’s letter are meant to address the unique situation that Ohio is currently facing. OAG cautioned public entities against relying on the guidance in order to enact policies or other actions unrelated to the instant emergency that would better be reserved for the normal operations of government. Districts should heed this warning and, as noted earlier, contact legal counsel for advice.
OSBA’s division of legal services will continue to monitor developments on this issue and others relating to the impact of COVID-19 on schools. You can also visit the OSBA website to view additional resources from ODE and ODH.