After declaring a State of Emergency with respect to the COVID-19 pandemic, the Governor has issued a series of evolving Executive Orders (specifically, Executive Orders 7, 7D, 7N, 7TT, and 7ZZ) addressing restrictions on indoor and outdoor gatherings for “social and recreational” purposes. The definition of such “social and recreational” activities includes but is not limited to the following: “community, civic, leisure, or sporting events; parades; conceits; festivals; plays or live performances; conventions; and similar activities.” While there are exceptions, the current restrictions are 25 persons for indoor gatherings and 100 persons for outdoor gatherings.
Similarly, in light of the desire to avoid large in-person gatherings, the Governor previously issued Executive Order 7B, which provides that the in-person open meeting requirements of the Freedom of Information Act [“FOIA”] were suspended so as to permit a public agency to 1) meet without in-person public access to such meetings, and 2) hold such meetings remotely by conference call, videoconference or “other technology”, provided that certain conditions were met (e.g., the public having the ability to view or listen to each meeting “in real time, by telephone, video, or other technology”). https://schoollaw.pullcomblog.com/archives/governor-lamonts-executive-order-and-the-foias-open-meetings-requirements/ In light of the Governor’s extension of the State of Emergency, this exception to the usual FOIA public meeting requirements remains in effect, at least until November 9, 2020.
CAN WE HAVE IN-PERSON SCHOOL BOARD MEETINGS?
While Executive Order 7B permits public agencies to meet remotely with no public attendance, it does not require such remote meetings. In light of the improving public health environment (which will hopefully continue in our state), it may now be more feasible to conduct public gatherings. Public agencies such as school boards are now grappling whether and to what extent they can have in person meetings.
Notwithstanding its broad definition and reference to “civic” and “community” activities, Executive Order 7N clarified that the limitations on “social and recreational gatherings” do NOT apply to “government operations”. Even in the worst days of the pandemic, in-person board meetings were not banned by either Executive Order 7B or the Executive Orders limiting the size of gatherings. Clearly, a school board could decide to have an in-person meeting.
That being said, school boards that are considering the possible resumption of live meetings should first contact their local health officials, and such officials may look to the (current) 25-person limit on indoor social and recreational gatherings as being instructive. It is also our understanding that the Governor’s office still recommends that local governmental board meetings be held remotely when possible.
Consistent with the Executive Orders, a board of education could have a “hybrid” in-person meeting, with board members being able either to attend the meeting in person or participate remotely, and with the public largely attending remotely (e.g., by Zoom, livestreaming, and the like). The board could even permit public attendance up to the applicable limitation on gatherings set by the local health official. However, the board would still be able to limit or even prohibit attendance by the public, as the FOIA open/in-person meetings requirements are still suspended by Executive Order 7B (in light of the extension of the State of Emergency by the Governor). Indeed, in order to avoid a situation where demand for space at the meeting by the public exceeds the in-person capacity limit, it may be best for the meeting notice to urge the public to participate by remote means.
SO WHAT ABOUT SCHOOL GATHERINGS?
I have been asked repeatedly about the application of the 25-person indoor and 100-person outdoor “social and recreational” gathering limits to activities in the schools, such as classes, assemblies and other school gatherings. Clearly, the desire to limit gatherings and the potential transmission of the insidious COVID-19 virus led to the closure of the schools in the Spring, but the schools have largely reopened.
It is not as clear if the general “government operations” exception, which clearly covers meetings of governmental bodies, applies to all school activities. Nonetheless, the State Department of Education’s “Advance, Adapt, Achieve” guidance on reopening schools — which allows schools to operate at 100% capacity during times when the risk of transmission is low, as it is currently deemed — will control the day to day operations of the schools, as opposed to the general limits for “social and recreational” gatherings. Consequently, the general restrictions on gatherings would not serve to limit 25 persons to any classroom, as long as the other precautions set forth in the “Advance, Adapt, Achieve” guidance are being followed (e.g., masks, social distancing). Please note, however, that notwithstanding the foregoing, there is a 16-child group limit on preschool classrooms.
Nevertheless, the schools should be mindful of the risk of large gatherings, such as, for example, an all-school assembly during the school day. While not offering a mandate or prohibition, the State’s “Advance, Adapt, Achieve” guidance suggests that schools “[c]onsider limiting or restricting nonessential volunteers and visitors, and activities held in the school such as assemblies or larger gatherings.” Again, schools considering such activities should first contact their local health officials, who may look to the current, 25-person indoor and 100-person outdoor limits on “social and recreational” gatherings as being instructive.
Finally, the “social and recreational” gathering limits affect after-school activities and the usage of school facilities and grounds. While such limits would apply to outside, non-governmental groups using the schools, it is possible that local health officials will follow these limits with respect to any school-sponsored athletic competitions, concerts or plays. Schools will also need to be considerate of policies that they may have already adopted that restrict if not prohibit larger gatherings in the schools, whether during the school day or after school.
PLEASE NOTE: This post incorporates material from an article written by the author for the CABE Journal.
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