Today, the World Health Organization officially declared that COVID-19, a novel coronavirus, has become a pandemic. We anticipate that this virus will pose many challenges to school districts and communities in the coming weeks and months. It is important for public school district boards of education to understand state laws regarding board meetings so that you have a plan in place to effectively maintain operations during this and future pandemics.
How frequently is a board of education required to meet?
Board of education must meet at least once every two months. Regular meetings are scheduled at the organizational meeting in January. A board of education may convene a special meeting by providing proper notice to the board members and the public. Board members must be notified of the special meeting at least two days prior to the event. Additionally, the board must announce special meetings at least 24 hours ahead of time to the public. With this said, the board of education may cancel meetings in its discretion. Notice of meeting cancellation should be provided as soon as possible.
May the Board of Education conduct a remote meeting online or by telephone?
Ohio’s Open Meetings Act, R.C. §121.22, requires a board of education to conduct meetings that are open to the public. Under state law, a member of a public body such as a school board must attend meetings in person. A public entity may not conduct a public meeting remotely unless the General Assembly has authorized it to do so. Boards of education have not yet been granted this authority. Typically, all meetings must be conducted in person and open to the public, even during a pandemic. The attorney general has declared as much in an opinion published in 2009, and concluded that a township could not meet remotely during a pandemic or other public health emergency, even to provide needed response services because this would interfere with the public’s ability to attend. Click here to access 2009 OAG 034.
UPDATE March 13th, 2020: the Ohio Attorney General issued a letter on March 13, 2020 following official orders issued by both the Ohio Governor Mike DeWine and the Ohio Department of Health Director Dr. Amy Acton which prohibited mass gatherings and also urged individuals to maintain adequate personal space. The Attorney General concluded that in light of this unusual public health emergency and in response to the executive orders, a member of a public body may “choose” to participate via telephone or video conference. Further, the public body may fulfill the requirement that meetings must be open to the public by streaming the meetings online or on television. The public body must meet all other Open Meetings requirements related to quorum, public notice and executive sessions. If the meetings are streamed over some type of technology, public bodies must publish information about how the public can access the meetings and ensure that discussions and deliberations of all participants are clearly heard. The Attorney General emphasized that public business must be allowed to continue in times such as these, but also clearly stated that this opportunity would apply in very narrow circumstances and only while the orders remained in effect. Click here to access the letter.
Districts should pay careful attention to the final comments included in the letter and should contact legal counsel for advice. The Attorney General cautions public bodies that they may want to refrain from making decisions that are unrelated to the current health emergency, including examples such as passing a new tax or enacting a new regulatory scheme.
What happens if a majority of board members are unable or unwilling to attend meetings due to personal choice, a quarantine or government order?
A board of education must have a quorum in order to properly conduct school business. A majority of all members of the board constitutes a quorum, and a majority of the quorum is typically sufficient to approve a motion or resolution. Some actions require a special voting majority (a majority of the full board or more) under state law. These include adoption of a resolution to purchase or sell real or personal property, employ a staff member, appoint a public official, pay a debt or claim, and adopt a textbook. Without having the required voting majorities, the actions may not legally be accomplished. As a result, a board of education may need to consider postponing certain actions and should attempt to reschedule meetings if an insufficient number of members are able to attend. In accordance with the Attorney General, boards may be able to host remote meetings under certain narrow circumstances during a health emergency. Boards of education may also be able to delegate certain decisions to a superintendent, and also may be able to take certain actions retroactively in an emergency. Boards should consider taking action to delegate authority where permitted by law during upcoming meetings. Boards may not delegate certain matters.
Will the General Assembly change these laws in response to the COVID-19 pandemic?
UPDATE March 16, 2020: The Ohio House of Representatives introduced a bill that would authorize a public board member or other member of a public body to attend a meeting by telephone or video conference during a period in which the governor has declared that a public health state of emergency exists. The board must ensure that the public is able to view the meetings. The bill declares an emergency, which means it will be effective immediately if passed and signed by the governor. Click here to review the bill.
It is likely that local, state and federal governments will work diligently with school districts and communities to address the many challenges that COVID-19 has caused and is likely to cause in the future. Therefore, it is possible that legislative measures will be taken that will allow public bodies to operate differently than before in response to the public health needs of the community. It is not yet certain how serious the pandemic will become, how long it will last, and what short and long-term impacts it will have on school operations. In the meantime, boards should regularly consult trusted sources and with legal counsel to explore options and weigh risks during this novel pandemic situation.
Ennis Britton will update this information if it changes over time.