On March 27, 2020, Governor DeWine signed into law amended H.B. 197 to address the many exigencies related to the spread of COVID-19. Among other items, H.B. 197 allows public bodies, including boards of education, to hold, attend, and take public action in public meetings by teleconference, video conference, or other similar means. H.B. 197 thus effectively removed any doubt whether electronic meetings are permissible under Ohio law, during the time periods set forth below.
Although boards may now hold, attend, and take public action in public meetings electronically, they must still meet certain requirements outlined in H.B. 197 and the Open Meetings Act. To ensure that boards comply with legal requirements, Pepple & Waggoner has prepared the following guidelines for conducting public meetings electronically.
Period During Which Meetings Can Be Held Electronically
Boards holding public meetings electronically may do so only during the period of the emergency declared by Executive Order 2020-01D (issued on March 9, 2020), and not beyond December 1, 2020.
Providing Public Notice
Notice is a basic tenet of the Open Meetings Act. Generally, boards must notify the public when and where each meeting will take place and must, for special meetings, give notice of what matters will be discussed.
H.B. 197 requires boards to provide notice that meetings will be conducted electronically. Boards must provide this notice to the public, to the media that have requested notification, and any party required to be notified of a hearing (ex. employee facing termination) at least twenty-four hours in advance. This notice must be provided “by reasonable methods” so that any person may determine the time, location, and the manner by which the meeting or hearing will be conducted (except for emergency meetings requiring immediate official action). In sum, boards must ensure that the public, media, or any other party required to be notified receives adequate notice that the meeting will be held by electronic means. As further set forth below, Pepple & Waggoner recommends that the notice include which technology will be used, (i.e., Zoom, Skype, GoToMeeting, internet webpage, YouTube, etc.) along with a “meeting ID” or internet webpage through which the participants can access the meeting.
Providing Public Access View the Board Meeting
In addition to providing notice, boards must provide public access to the meeting, in accordance with the method by which the meeting is conducted. For example, boards may allow access through live-streaming, local radio, television, cable, public access channels, a teleconference, or “by means of any other similar electronic technology.” As explained above, to ensure proper access, it is recommended that the notice contain a “meeting ID” or a web address. Boards have discretion regarding the technology they want to use. Regardless of how access is provided, boards must ensure that the public can observe and hear the discussions and deliberations of all the board members, whether the member is participating in person or electronically.
The fact that meetings can be held electronically does not change the requirements that boards must keep full and accurate minutes of their meetings, and that minutes must be promptly prepared, filed and maintained. R.C. 121.22(C).
While H.B. 197 provides boards with emergency relief to conduct important business and meet electronically, boards wishing to enter executive session must still comply with the current rules governing such sessions. The law did not waive or provide any greater rights to enter executive session than those that currently exist in R.C. 121.22(G).
Boards wishing to enter executive session should ensure that the technology they are using allows them to separate from the public while in executive session. For example, the technological platform used may allow the board to create a separate “conference” accessible only to board members. If the platform does not allow it, a reasonable method would be for board members to leave the open meeting (ex. log off from the open meeting), initiate a separate teleconference amongst themselves while they are in executive session and, upon completion, re-join the electronic meeting open to the public.
The Open Meetings Act does not require boards to provide the public with an opportunity to comment at its meetings; rather, it only guarantees the right to observe a meeting. Check your board’s policy regarding public participation at board meetings, including how to suspend such participation if you wish to do so for your electronic meetings.
If you still wish to provide public participation, then you may continue that. Keep in mind that many policies require those who wish to participate to provide notice ahead of time of their topic and ask them to provide their name and address. While other policies merely require the person to sign in at the beginning of the meeting if they wish to be recognized during public participation. Those portions of your policy should be considered if switching to an electronic meeting.
Board Action Prior to H.B. 197
Some boards, relying on the Ohio Attorney General’s March 13, 2020 guidance, may have already conducted electronic meetings and taken formal action. Given it was taken prior to the passage of H.B. 197, there is some concern whether such action is valid and whether H.B. 197 applies retroactively. If that occurred, and such action were to be challenged, the board of education could argue that the action was valid because H.B. 197 states that electronic meetings may be held “during the period of the emergency” and the emergency was “issuedon March 9, 2020…” H.B. 197 further adds that “any resolution, rule, or formal action of any kind shall have the same effect as if it had occurred during an open meeting or hearing of the public body.” Nonetheless, for those boards wanting to leave no doubt, Pepple & Waggoner recommends they re-adopt any action taken during meetings which were held electronically between March 9, 2020 (declaration of emergency) and March 27, 2020 (effective date of H.B. 197).
Reminder to Ensure Compliance
Given that conducting meetings electronically is a new concept, boards must be extra cautious in maintaining records of the public notices they issue, how meetings are conducted, and how public access/participation is handled. The Ohio Auditor of State will undoubtedly be carefully reviewing records pertaining to electronic meetings.
Moreover, the Auditor recently introduced Senate Bill 293, which seeks to create a procedure within the Court of Claims to hear complaints alleging a violation of the Open Meetings Act (a similar procedure already exists under R.C. 2743.75 for public records request disputes). To file a complaint, a person would only need to complete a form and pay a small filing fee to the clerk of the court. This process would be much quicker and cheaper than filing a lawsuit, which is currently the only way to hold public officials accountable for open meetings violations. Thus, this potential new law should give boards even more incentive to ensure compliance with the Open Meetings Act and H.B. 197.
For any other questions regarding the Open Meetings Act and H.B. 197, school districts are encouraged to contact their legal counsel.
Contributions to this blog post made by Milko Cecez, Esq.