Some Frequently Asked Questions: Implementing the Open Meetings Law during the COVID-19 Outbreak
Governor Cuomo’s Executive Order 202.1 dated March 12, 2020 suspended the provisions of the Open Meetings Law that require school boards to conduct their business at meetings that allow for in-person attendance by members of the public. Pursuant to that Executive Order, school boards instead may meet through the use of electronic means such as video and teleconferencing.
NYSSBA continues to receive questions from school board members and district clerks regarding what exactly this all means. The following questions and answers incorporate the more common inquiries received to date. NYSSBA’s legal team frequently consults with the Committee on Open Government (COOG) regarding questions that otherwise have no clear answer, and will continue to pass that information along. School boards should also consult with their school attorney regarding these issues.
Does Executive Order 202.1 also suspend the quorum requirement?
No, a quorum of the school board is still required to conduct school district business.
Does Executive Order 202.1 apply to school board committee meetings?
To the extent that a school board committee is subject to the Open Meetings Law, it would also be subject to the Executive Order and may hold meetings electronically. Those include meetings of committees or subcommittees consisting solely of board members that discuss or conduct public business, and committees composed of non-board members but which carry out a governmental function such as the district-wide shared-decision-making committee and the audit committee.
Must school boards meeting electronically provide for electronic public attendance at such meetings?
Yes. Pursuant to Executive Order 202.1, the public must be able to contemporaneously view or listen to school board meetings conducted electronically.
In addition, electronic board meetings must be recorded and transcribed.
Are school boards required to use any particular method for conducting their meetings electronically?
No. Pursuant to Executive Order 202.1, school boards may choose a video/web conferencing method or a teleconference service. There are multiple programs available such as GotoMeeting, Zoom, Webex, and FreeConferenceCall.com (which is now implementing "pay what you can pricing").
What factors should school boards consider when choosing an electronic meeting method?
School boards should consult with their district’s technology personnel who can advise as to the benefits and limitations of various electronic meeting programs and platforms, and their cost. Factors to consider include the ease of use of the platform selected for all stakeholders (board members, district staff and the public), as well as the hosting capability of the platform (i.e number of attendees it can support), and the ability to receive public comment if the school board allows for public participation.
Can school boards change an initial choice of method for conducting their meetings electronically?
Yes. As needs change and depending on specific circumstances such as rising capacity issues, school boards may need to adjust their use of electronic meeting method. However, they should properly notice to the public the specific method used.
Must the public be informed that its school board is meeting electronically?
Executive Order 202.1 only suspends the in-person requirements of the Open Meetings Law. Rules requiring public notice of board meetings remain in place. So if a meeting is scheduled one week in advance, the board still must give public notice stating the time and place to the news media and conspicuously post the notice in one or more designated public locations at least 72 hours before the meeting. If a meeting is scheduled less than a week in advance, notice must be given to the news media to the extent practicable. In both instances, the notice must also be posted on the district website.
Consistent with both the spirit of the Order and the intent of the Open Meetings Law boards should deem notice of the "place" the board is meeting as referring to notice of the web link or teleconference number that the public can access to contemporaneously view or listen to the school board meeting.
Must school boards meeting electronically conduct at least a portion of their meeting in a school building?
No. The Open Meetings Law itself only requires that school board meetings be held in an appropriate facility which can adequately accommodate members of the public, but does not specify any exact location or geographic area. There is no requirement that any portion of a board meeting take place in a school building.
Consistent with Executive Order 202.1 and the importance of social distancing under current conditions, it may in fact be best practice to have all participants attend remotely.
Must the location from which an individual board member might be attending a school board meeting electronically be advertised?
No. Normally, when school board members participate in a board meeting using video conferencing, the Open Meetings Law requires that the public be informed of the remote address from which the board member is attending and both locations must be accessible to the public. However, because Executive Order 202.1 suspends the in-person attendance requirements, there is no need to provide notice of the address from which a board member is attending remotely.
What exactly does the Executive Order 202.1 requirement that school boards transcribe their meetings mean?
While the Executive Order remains in place, school boards must both record and transcribe their meetings. According to COOG staff, that means a word for word transcription of the meeting. Merely posting minutes of the meeting will not meet this requirement.
COOG staff also recommends that the recording of the meeting be posted to the school district website as soon as possible after the meeting and that the transcript be provided a reasonable time thereafter.
Boards should consult with their school attorney regarding the possible use of school support staff working at home to prepare the transcript of school board meetings.
Are there any changes regarding the time at which school boards may hold their meetings?
Normally, the Open Meetings Law does not dictate the time at which school boards may meet even though it requires that the public be allowed to observe their meetings.
At least one court has found it inappropriate for a board to hold a meeting at 7:30 am. Accordingly, boards normally schedule their meetings in the evening for the public’s convenience.
It may seem that during a time of school closures and business shut-downs members of the public could contemporaneously view or listen to board meetings held at earlier times in the day. However, it is important to remember that many individuals "at home" are working remotely, caretaking, overseeing distance learning and homeschooling of their children and attending to myriad other tasks. To facilitate the public’s opportunity to attend their meetings electronically, boards should consider maintaining their traditional evening hours. The public is already used to such hours and the technological capacity to hold and attend electronic meetings can be greater during the evening hours.
How can school boards entertain public comment when meeting electronically?
The ability of a school board to receive public comment while conducting an electronic meeting will vary depending upon the program or platform the board selected for conducting the meeting.
The board may need to adjust its procedures for public comment based upon the capabilities of the program or platform it is using. Any adjustments should be clearly communicated to the public. The board may also need to review and adjust its policy on board meetings relative to public comment.
How may a school board that is meeting electronically conduct an executive session?
School boards should consult with the school attorney to develop a process for conducting an executive session under such circumstances. It could be, for example, that a board using video conferencing for its meeting and making a motion to enter executive session may have its members step away from their computers and have a separate teleconference for the executive session at a number distributed only to those attending the session. Once the executive session is concluded, board members would return to their computers and the meeting would continue via video conferencing where the public can observe the business being conducted.
Participants should protect the confidentiality of the executive session by making sure they are alone and others, including family members, cannot hear what is being said.
Special thanks to NYSSBA’s Legal Team for preparing this FAQ. They will update you on new developments, and remain available to answer your legal questions.
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