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FAQs on School Board Meetings During COVID-19 Pandemic

Brad Banasik

By Brad Banasik, J.D., MASB Legal Counsel/Director of Labor Relations & Policy

DashBoard, March 18, 2020

Following is guidance regarding holding school board meetings during the COVID-19 pandemic.

Gov. Gretchen Whitmer recently issued Executive Directive 2020-02 Re: Public Meetings of State of Michigan Public Bodies During the COVID-19 Emergency that applies to “[a]ll public bodies of departments and agencies of the State.” Is a school board an “agency of the State?”

Most likely not. In most cases, an agency of the state is a unit of state government. School boards are usually referred to as “units of local government” or “political subdivisions of the state.”

If Executive Directive 2020-02 doesn’t apply to school boards, does that mean school boards should ignore its directives?

No. It’s MASB’s opinion that school boards may still rely on the guidance found in Executive Directive 2020-02 and should still attempt to comply with the intent of its directives, including the following:

  • Public bodies subject to Executive Directive 2020-02 “must, to the extent practicable, consider postponing public meetings and/or agenda items that may be deferred until a later time.”
  • Public bodies subject to Executive Directive 2020-02 “that must continue to meet must do so by means sufficient to enable meaningful access and communication for all participants. Participation by remote access technology, including conference calling, real-time streaming, or other platforms is acceptable, and sufficient to form a quorum, so long as public access and participation is preserved.”

Must a school board hold a regular meeting each month?

Yes. The Revised School Code requires regular meetings of a local school board to be “held at least once each month. . .” (MCL 380.11a(6)) However, it is very likely that state and local authorities will not enforce this meeting requirement during the COVID-19 Pandemic. MASB is also currently working with the Governor’s office on temporarily suspending the monthly meeting requirement. Therefore, if a school district determines that the health and safety interests of cancelling a regular meeting outweigh the need to hold a regular meeting, the school district should postpone the meeting as directed by the Governor under Directive 2020-02.

Does the Open Meetings Act require a board vote to cancel a scheduled regular meeting?

OMA does not include any procedures or guidelines for cancelling a regular meeting. It does, however, require a school board to adopt a schedule of regular meetings, which must be posted within 10 days after the board’s first meeting in a new calendar or fiscal year. OMA also provides that if there is a “change” in the schedule of regular meetings, a school board shall post public notice of the new dates, times and places of the regular meetings “within three days after the meeting at which the change is made.”

If changing the regular meeting schedule requires a vote by a school board at an open meeting, does that mean cancelling a regular meeting requires a board vote as well?

Not necessarily. There are no court decisions or published Michigan Attorney General opinions concluding that OMA prohibits cancelling a scheduled regular meeting without a board vote. It also follows the spirit of OMA to provide public notice that a scheduled meeting has been cancelled rather than holding the meeting and having only one or two board members attend due to hazardous weather conditions or a conflicting event. Additionally, it would be counterintuitive to require a quorum of a school board to show up for a scheduled meeting just to cancel it.

Based on these foregoing reasons, MASB has consistently concluded that a cancellation doesn’t amount to changing the regular meeting schedule and, thus, a scheduled regular meeting may be cancelled without a vote of the school board.

Who can cancel a scheduled regular meeting?

In most cases, the decision to cancel a scheduled meeting will be made by the board president.

Executive Directive 2020-02 indicates that it is acceptable to use “remote access technology” to comply with OMA and even “to form a quorum.” Does this mean a school board may hold a virtual meeting under OMA?

Most likely. MASB has consistently advised that the way OMA is currently written, a board member’s vote can be counted even if the board member is not physically present as long as the board member is actively participating in the meeting remotely. Further, many school boards have adopted a bylaw on the issue. For example, most Neola clients have adopted the following definition for “voting” (Bylaw 0100):

Voting

A vote at a meeting of the Board of Education. Except to accommodate the absence of any member of the Board due to military duty, Board members must be physically present to have their vote officially recorded in the Board minutes unless the Board member has notified the Board President prior to the meeting that s/he must participate remotely and the Board President approves remote participation by the Board member.

Thus, under this Bylaw, a board member’s vote can be counted if he or she is participating in the meeting via Skype, conference call, etc., and the Board President approves the remote participation.

MASB has always stopped short of recommending a virtual meeting where all board members are participating in the meeting by remote means because such a meeting likely defeats the purposes of OMA. However, it appears that Executive Directive 2020-02 permits using conference calling or videoconferencing for all participating board members “so long as public access and participation is preserved.”

If conference calling or videoconferencing is used to conduct a public meeting under OMA, all votes during the meeting should be taken by roll call.

If you have additional questions, please contact me at bbanasik@masb.org or 517.327.5929.

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