Pending Legislation Allowing Telephonic Board Meetings

There may be legislation coming that will expressly permit telephonic board meetings.  Specifically, H.B. 557 was proposed with the following title:  “To enact section 121.221 of the Revised Code to authorize public bodies to meet via teleconference and video conference during a public health state of emergency as declared by the Governor, and to declare an emergency.”

Department of Health Order

While it has not occurred yet, Health Director, Dr. Amy Acton, could expressly order that public board meetings cannot occur in some fashion, as she did with the polls for the March 17, 2020 election, as a health emergency, which would render open public meetings impossible.  If that occurs, the legal doctrine of “impossibility” could give rise, and boards would have a path to implement telephonic board meetings to continue public business.  State ex rel. Brown v. Bd. of County Commrs. of Franklin Cty., 21 Ohio St. 2d 62 (1970); OAG 62-3228; OAG 70-107.  A suggested process for telephonic board meetings is detailed below.

Attorney General Letter

In the meantime, on March 13, 2020, the Ohio Attorney General Dave Yost issued a letter of guidance related to the Open Meetings Act (“OMA”) for the purpose of reconciling the declaration of emergency from the Governor and the order from the Ohio Department of Health, which prohibits mass gatherings and urges social distancing, with the OMA’s requirement that members of a public board be present “in-person” at public meetings to be considered present for establishing a quorum and voting.  The Attorney General’s letter states, in pertinent part:

“In this limited circumstance, where the Governor has declared a state of emergency and the Director of the Ohio Department of Health is limiting gatherings so as to prevent the spread of COVID-19, but the business of government must continue, it is reasonable to read the OMA’s ‘in person’ requirement as permitting a member of a public body to appear at a public meeting via teleconference. This interpretation gives effect to both R.C. 121.22 and R.C. 3701.13. It is also consistent with the United States Centers for Disease Control’s recent guidance, issued in response to the national COVID-19 epidemic, to use videoconferencing for meetings when possible.”

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“Although the OMA does not specifically dictate how a meeting is made ‘open’ to the public, in the interest of complying with both Dr. Acton’s Order and the OMA a meeting could be made ‘open’ to the public by live-streaming it through the internet or on television. If a public body gives the public access to a meeting electronically and the members of the body appear telephonically, the body must still ensure that the public is able to hear the discussions and deliberations of all of the members, even those who are present via telephonic means. Finally, all other requirements of the OMA will apply, including those that govern notice, executive session, and the taking of meeting minutes.”

The letter goes on to state that political subdivisions “should discuss this matter with [their] legal counsel before making any decisions.”  Understanding that the events we are all grappling with are unprecedented and that there is no binding precedent to which any of us can turn for definitive direction, the following is Bricker’s suggested course of action for Boards that opt to (or are forced to, due to the size of the meeting) utilize this teleconference approach.

Board Member Attendance by Teleconference

Initially, we note that throughout this period, boards will be facing a fluid situation.  This may require boards of education to revisit their meeting procedures multiple times and adjust them as additional guidance is received from our federal and state governments.  Actions that may seem reasonable this week may not appear reasonable next week as the environment in which we all operate changes.  While the restrictions imposed by the emergency are meant to slow down the spread of a virus, it does not eliminate the public policy advanced by the OMA:  to allow the public to monitor the actions of their elected officials.  This principle is especially important during times of crisis.  Given that, boards of public bodies must act judiciously in determining whether and how they will change their meeting procedures.  While boards must take the steps necessary to protect the public, they should also provide various means for the public to monitor what is happening at board meetings throughout this period. 

Here are suggested steps to consider:

1. May the Public Be Barred From Physically Attending Meetings?  R.C. 121.22 requires that board meetings be open to the public.  If the public is prohibited from attending in person or urged not to attend, the Board should ensure its meetings are viewable by electronic means and notify the public of that electronic means in advance of the meeting.  In such case, the Board can also read public comments provided in writing, should it opt to do so. 

2. May Board Members Attend Meetings Electronically? 

1. In-person.  Members of the Board should attend in-person when possible, and, when doing so, should engage in social distancing of at least six feet during the meeting when possible (as urged by the order from ODH);
2. Quorum.  An in-person quorum of the Board is always preferable to take legally binding actions.  Actions taken without an in-person quorum present may not be legally binding, even despite the current orders.
3. Teleconference Participation.  The AG’s letter provides a legal theory for teleconference participation (as opposed to in-person participation) by Board members, pursuant to R.C. 3701.13.  Although there is no binding legal precedent supporting this theory, we are in unprecedented times, and the theory’s reliance on what is “reasonable” appears colorable under State law.  Accordingly, should a board member opt to participate telephonically, the following is a proposed process for telephonic participation with two caveats:  1) consider delaying action on an impactful issue until a voting quorum is physically present or a permanent legislative amendment to the OMA is enacted; and 2) subsequently ratify all teleconference actions when an in-person quorum can ultimately be accomplished. 

i. Suggested process for teleconference participation.  Fortunately, there is legislative guidance for teleconference board meetings, as port authorities have the ability to conduct such meetings under R.C. 4582.60.  That statute provides:

1. The board must establish a primary meeting location that is open to the public with at least one board member in attendance in-person;
2. Meeting-related materials that are available before the meeting must be sent via electronic mail, facsimile, hand- delivery, or United States postal service to each board member;
3. In the case of an interactive video conference, the board must cause a clear video and audio connection to be established that enables all meeting participants at the primary meeting location to see and hear each board member;
4. In the case of a teleconference, the board must cause a clear audio connection to be established that enables all meeting participants at the primary meeting location to hear each board member;
5. All board members must have the capability to receive meeting-related materials that are distributed during a board meeting;
6. A roll call voice vote must be recorded for each vote taken;
7. The minutes of the board meeting must identify which board members remotely attended the meeting by interactive video conference or teleconference;
8. Not more than one board member remotely attending a board meeting by teleconference is permitted to be physically present at the same remote location as another board member;
9. The board must establish a policy for distributing and circulating meeting-related materials to board members, the public, and the media in advance of or during a meeting at which board members are permitted to attend by interactive video conference or teleconference; and
10. The board must establish a method for verifying the identity of a board member who remotely attends a meeting by teleconference.

ii. Gradation.  As this process is unprecedented, as discussed above, the Board should consider holding off on more significant and non-pressing actions (such as tax levies or bond legislation) until an in-person quorum can be accomplished.  Please consult legal counsel about such situations.

iii. Ratification.  The Board should also ratify all Board actions made via teleconference at the next opportunity when an in-person quorum can be accomplished, also understanding that the courts’ recognition of such retroactive ratification to date has been mixed. 

The issues being considered by public bodies and the circumstances affecting their ability to meet pursuant to the OMA vary considerably.  For that reason, each governing board is encouraged to consult with its legal counsel to discuss the solutions that best serve its particular needs.

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