Ensuring Board Meetings Remain Legally Compliant During the COVID-19 Pandemic

As every educator knows, your work never stops. During this crisis, our Boards of Education must continue to conduct important public business. There are some basic steps that every district will want to take to ensure the meetings of your Board remain compliant with the Missouri Sunshine Law during the COVID-19 pandemic. We put together the following guidance for districts to refer to when planning for upcoming Board meetings.

As previously noted in other related blog posts, districts can cancel Board meetings. There are no requirements within Missouri law regarding how often a district’s Board must meet. If your Board decides to cancel its meeting, we recommend providing notice of that cancellation as soon as possible in the same manner it provides notice of meetings.

Please note, however, that hiring, renewal and termination decisions, as well as the power to enter into contracts, rests with the Board by statute, and these powers cannot be delegated to district staff, including the Superintendent. If any of these decisions are necessary to continue regular operations of the district, they must be made by the Board during a meeting. Further, while personnel decisions may be made by the Board during a closed meeting, it may not be proper to make other decisions, such as whether to enter into certain contracts, in a closed meeting.

It is important to keep in mind the following basic requirements in Chapter 610, RSMo, a.k.a. “the Sunshine Law,” for both open and closed meetings:

  1. Provide the public at least 24 hours’ notice, exclusive of weekends and holidays, prior to the start of any public meeting.
    1. Notice must be posted at the principal office of the body holding the meeting.
    2. If the meeting will be conducted by telephone or other electronic means, the notice must identify such mode and the designated location where the public may observe and attend the meeting.
    3. If the meeting is held by “internet chat, internet message board, or other computer link,” then a district must post notice of the meeting on its website in addition to its principal office and shall notify the public how to access that meeting. § 610.020, RSMo.
  2. Each meeting must be held at a place that is reasonably accessible to the public and of sufficient size to accommodate the anticipated attendance by members of the public, and at a time reasonably convenient to the public, unless for good cause such a place or time is impossible or impractical. Id.
    1. When it is necessary to hold a meeting on less than twenty-four hours’ notice, or at a place that is not reasonably accessible to the public, or at a time that is not reasonably convenient to the public, the nature of the good cause justifying that departure from the normal requirements shall be stated in the minutes. Id.
  3. Roll call votes are required during closed meetings. All roll call votes must be cast by members who are physically present and in attendance or who are participating via videoconferencing. § 610.015, RSMo.

Complying with these requirements while also complying with the current recommendations or requirements issued by local, state, and federal public health authorities is challenging. Although things are changing by the minute and some areas of Missouri already have stricter orders in place, at a minimum, districts should comply with the recommendations and orders of the U.S. Centers for Disease Control and Prevention (CDC) and the Missouri Department of Health and Senior Services (DHSS), including avoiding “social gatherings” (Board meetings would fit this definition) of more than 10 people. In some places, groups of less than 10 may still convene so long as necessary precautions are taken and maintained to reduce the transmission of COVID-19, including maintaining at least six feet (6’) of distance between all individuals that are not family members. Some areas of Missouri where “stay at home” orders have been issued are under stricter requirements than other areas.

With this above landscape in mind, below are options for districts to consider when holding Board meetings.

  1. Hold open and closed sessions via videoconferencing. If your District has the capability to have all Board members present via videoconferencing and livestream the meeting, your meeting notice must inform the public how to join and participate in the meeting. Services providing these capabilities include:
    1. Microsoft Teams – A part of Office 365 (free for schools).
    2. Google Hangouts and/or Meet (free for schools).
      • This is geared toward Google GSuite users and those who do not need to add Microsoft documents (although Microsoft documents can be transferred to Google).[1]

 

  1. Livestream open sessions held via telephone. This could be done by setting up a conference line with a service like “GoToMeeting.” Then, a District could have the Superintendent on video to livestream the meeting using a cell phone (or other technology) on Facebook or YouTube to maximize accessibility. This approach may help districts comply with the requirement of designating the location where the public may observe and attend the meeting (e.g. in their homes). This may also help Districts with the need for a sign language interpreter for accessibility purposes.[2] Important considerations include:
    1. If votes need to be taken in closed session, these must be taken with all members present in-person, via video conferencing, or a mixture of both. Except for some limited circumstances which likely do not apply, closed session votes made by elected officials cannot be conducted via telephone. In addition to the services listed above, there are other options for Districts when you need to hold a closed session and livestream capabilities are not needed. Those options include: Zoom, GoToMeeting, CiscoWebex, Skype, and Blizz.
    2. If the Board cannot convene via videoconferencing or in-person for a closed session, consider whether the Board can make decisions and take votes in open session. Remember, the exemptions from the Sunshine Law are permissive in most cases; however some items, like student matters, should never be discussed in open session without parental consent. Votes to hire and fire staff, may be taken in open session.

 

We have received questions from Districts about holding meetings, but restricting access to 10 or less people including the Board and District staff. While this may be appropriate for closed session meetings, this approach presents legal risks for open sessions. Even if a District were to set up meeting rooms elsewhere in the District, open the gymnasium, etc. for “overflow” attendees to watch a video feed of the meeting, this sort of arrangement may not provide the access contemplated by the Sunshine Law.

Additionally, there is a provision in the Sunshine Law that may allow Districts to deviate from some of the above requirements “due to an emergency of the public body.” § 610.015, RSMo. It is unlikely that the current pandemic would qualify as an emergency of a District, unless of course, the Board were meeting to discuss and act on a pandemic-related emergency matter specific to the District. Meeting to conduct regular business but relying on this emergency language to deviate from requirements presents legal risks for Districts. Likewise, we do not have caselaw on point or guidance on the language in number 2 above about deviating from certain requirements when it is “necessary” or for “good cause” when holding a meeting in a place reasonably accessible to the public is “impossible or impractical,” especially as it relates to a public health pandemic. It is quite possible that a court may find that the likelihood of transmission of COVID-19 makes it impossible or impractical for a public body to hold a meeting in a place reasonably accessible to the public, but that remains to be seen.

Ultimately, if members of your Board will be present in-person for an open session meeting, it may be best to make the meeting accessible to the public both in-person and electronically but encourage the public to attend electronically. In this case, Districts may want to make arrangements on-site to balance the competing mandates of public health authorities and the Sunshine Law.

We hope that you find this information helpful as you plan for upcoming Board meetings. The situation is constantly evolving, and each District may have unique circumstances to consider. Furthermore, it is possible that legislative action may be taken to address these difficulties. We will keep you updated as things progress. If you have specific questions you’d like to discuss, please don’t hesitate to reach out to one of the team members at EdCounsel!

[1] Thanks to Clint Miller with Midwest Computech for providing recommendations on services and the following Youtube tutorial links for Microsoft Teams (https://www.youtube.com/watch?v=CH2seLS5Wb0)  and Google Hangouts and/or Meet (https://www.youtube.com/watch?v=hArd1WaYVPM).

[2] We recommend including an accessibility statement on your public notice, such as: “The District and all of its programs and activities are accessible to and useable by persons with disabilities, including persons who are deaf, hard of hearing, or blind, or who have other sensory impairments. If you require an aid to access the meeting, please contact (name and contact number).”