One of the most frustrating aspects of public school governance is keeping up with the details of the Nebraska Open Meetings Act. Those requirements are changing again. In this KSBlog post, we want to update you on (1) the latest Executive Order regarding electronic meetings; (2) the new legal requirements for advertising all school board meetings; and (3) how you will need to change your school board minutes to account for both of these new developments.
Calling/Zooming into Board Meetings Generally
You may recall that last spring, the governor of Nebraska issued an executive order that allowed school boards to hold meetings electronically. That order expired on June 30. Since then, some boards have encountered board member absences related to the pandemic as their communities faced outbreaks of COVID-19.
Generally speaking, the Open Meetings Act does not permit school boards to hold meetings by video or telephone conference. Section 84-1411(6) states:
“A public body may allow a member of the public or any other witness other than a member of the public body to appear before the public body by means of video or telecommunications equipment.”
The Act does not define what it means to “appear” before the board. In a prior disposition letter, the Attorney General’s office broadly prohibited board members from calling into a meeting, suggesting that a board member may not even be able to listen into a meeting (without participating in votes or discussions) without violating this provision. See, Aurora Airport Authority, 19-M-112, p. *4-5 (Atty. Gen. May 3, 2019) (disposition letter). So, for years, we’ve advised clients that board members should not listen in and specifically could not participate in any way remotely. Based on more recent informal discussions with the AG’s office, we believe they may take the position that a board member could listen into a meeting via video or telephone conference, so long as that board member did not participate in the meeting, discussion, or votes. File this away as an issue to be examined again in the future, and perhaps a legislative clarification is possible.
Executive Order No. 20-34
Fortunately, on October 30, 2020, Governor Ricketts signed Executive Order No. 20-34, which should make it a little easier to meet through the end of the year. While board members cannot usually participate in votes and discussion over telephone or video conference, Executive Order No. 20-34 authorizes additional flexibility when physical attendance at the meeting is frustrated by COVID-19. Effective until December 31, 2020, the Order provides:
Elected officials who have been ordered to quarantine or isolate by the local public health agency due to exposure to COVID-19, in conformance with guidance from the Nebraska Department of Health and Human Services, may fully participate, vote, and be counted as part of a quorum in meetings when attending by video conference or by telephonic conference or by conferencing by other electronic communication . . . so long as the public body has at least one physical location that provides access to members of the public and to members of the media.
This Executive Order expires December 31, 2020. Going forward, it is important to remember that this executive order is not nearly as broad as the previous orders permitting a board to meet by video or telephone conference, and only applies to members of the board ordered to quarantine and isolate.
REMINDER: LB 148 and Publishing Notice of Meetings
We’ve talked about this a lot with our policy service subscribers and in various presentations, but here’s your friendly reminder on the changes to Nebraska’s public meeting notice laws. Effective November 14, 2020, LB 148 requires school boards to give notice of their meetings by publication in a newspaper of general circulation within their jurisdiction and, if available, on that newspaper’s website.
Although there is no clear legal definition of a “newspaper of general circulation,” we think that so long as the newspaper in question has subscribers within and beyond your school district, and it contains news stories of general interest to readers (in contrast to only industry-specific or school-specific content), that should be adequate to comply with the new law. We also believe that other newspapers circulating and readily available in your district, such as the newspaper of a neighboring town or county, probably satisfy your obligation to publish notice. If you aren’t sure whether your preferred newspaper(s) counts, contact your school attorney.
In addition to the added costs this will impose on schools, these new requirements may hinder a board’s ability to meet on short notice or adjust the time and date of a meeting due to exigent circumstances (such as severe weather, or, you know, A FRICKIN’ PANDEMIC!) As a result, we recommend that boards identify multiple newspapers with different publication schedules, including at least one with a daily circulation in your community if possible, that could satisfy the new publication requirements on shorter notice. For example, we believe that the Omaha World Herald is a newspaper of general circulation for much of Nebraska.
Additional Requirements for Your Minutes
Finally, both the new Executive Order and LB 148 will require you to make changes to the contents of your minutes.
First, if a board member attends a meeting via telephone or video conference, the meeting minutes must reflect that the member participated electronically and note when the member voted on an issue via electronic means.
Second, all of your minutes must now include methods and dates of publication of notice of the meeting. For those of you who use the Nebraska School Boards Association’s Sparq Data Solutions for your minutes, you can set your minute templates to prompt you to include that information. Sparq staff have made this helpful video to show boards how to set up that template.
Conclusion
We know that you have a LOT on your plate right now. The new Executive Order should make life a little easier for boards to continue business as usual when board members are subject to quarantine orders. The Attorney General’s new interpretation of the Act allowing even board members who are not under quarantine to listen in to meetings electronically so long as they do not participate or vote is also helpful. However, the new publication requirements in LB 148 will make it much more difficult for boards to advertise their meetings. The Executive Order expires at the end of 2020, but the new publication requirements will remain in effect indefinitely.
If you have any questions about a board member’s ability to listen into or participate in a meeting via telephone or video conference, or the publication and notice requirements imposed by LB 148, please don’t hesitate to reach out to one of the KSB School Law attorneys at (402) 804-8000 or email us at ksb@ksbschoollaw.com.