As public schools in Illinois are busy redesigning their curriculums for the fall, “COVID-19” continues to interrupt not only classrooms, but also other essential educational operations. On March 9, 2020, in response to the COVID-19 pandemic, Governor Pritzker declared all Illinois counties a “disaster area” and subsequently issued a series of executive orders designed to allow essential operations to continue notwithstanding the “shelter in place” orders. One of those orders relaxed certain provisions in the Illinois Open Meetings Act (the “OMA”). OMA applies to all public schools in Illinois, including schools operated by private entities through a contract with CPS (“contract schools”) and Illinois Public Charter Schools. Requirements are expressly imposed on meetings of public charter school boards under Section 5/27A-5(c) of the Illinois’ Charter School Law.
Public school boards are generally required to hold meetings that are publically open, convenient and in-person (subject to certain narrow exceptions). Specifically, in ordinary times this means that a quorum of public school board members must be physically present when attending and participating in board meetings. On March 16, the OMA’s “in person” requirements were temporarily relaxed by Section 6 of the Governor’s Executive Order 2020-7. On June 12, 2020, the OMA was amended, permitting public bodies, during a Governor-declared health disaster, to hold an open or closed meeting by audio or video conference without the physical presence of a quorum of the members as long as several, enumerated conditions are met. Complete details of the requirements can be found in the amended act, but the following is a summary of those most pertinent to public school boards:
- All participating board members must be “verified” and able to hear one another, as well as all other discussion and testimony;
- Members of the public (whether attending physically or virtually) must be able to contemporaneously hear all discussion and testimony and all votes of the members of the body;
- Each member’s vote on each issue must be identified and recorded;
- The public body must bear the costs of the virtual meeting;
- Except in the event of a bona fide emergency, 48 hours’ public notice (in a variety of specific forms spelled out by the statute) is required;
- Unless “unfeasible” due to the disaster, at least one member of the body, chief legal counsel or chief administrative officer must be physically present at the regular meeting location; and
- If such a “bona fide emergency” is declared, the nature of the emergency must be stated on the record at the beginning of the meeting and the public body must comply with specific, verbatim recording requirements as detailed in the law.
As the fall semester begins and many public charter and contract school boards resume their regular board meetings in earnest, they will need to master the details of these rules if meetings cannot safely be held in person. Even under these emergency rules, public school board meetings still must be open to the public and still must permit public comment.
In our experience, schools who have held meetings during the pandemic have used one of the many social media platforms (Zoom, GoToMeeting™, Microsoft® Teams, Google Meet, etc.) to allow members of the public to register for, listen and participate in public board meetings. These programs also offer easy recording of the meeting for times when it is required by OMA.
More challenging, and likely requiring particularized legal advice, are other aspects of the OMA that have not been suspended, such as the movement out of a public meeting session into a “closed” session for OMA-permitted exceptions. Many schools have set up a separate, password-protected room or even a separate meeting link for such sessions.
On the practical side, school board members attending virtual meetings should be aware that just because they cannot see or hear public participants, they must be assumed to be present. As such, it is particularly important for public school board members to remember, as they always should, that their words and actions remain public in every sense of the word. Training board members on how virtual meetings will be conducted under the emergency order is well worth their time and may promote efficiency and save embarrassment or an inadvertent violation of the amended OMA rules of the road.
If you have any questions, the Illinois Attorney General has issued helpful guidance to public bodies with respect to OMA and Illinois Freedom of Information issues that are affected by the amended OMA and the Governor’s other emergency orders. If you have any other questions, please feel free to reach out to Mike Sullivan or Meredith Kirshenbaum at Goldberg Kohn.