Although the news reports keep assuring us that a COVID vaccine will bring this pandemic to an end by next summer, for now, the infection numbers continue to rise. Education leaders have legitimately expressed concern over whether it is safe to continue holding public meetings where school board members, administrators, and members of the public all pile into a library or conference room. Unfortunately, Nebraska’s Open Meetings Act requires school board members to attend meetings in person only (ESUs can hold virtual meetings already). However, on November 30, 2020 the Nebraska Governor’s office released Executive Order 20-36, which will allow Nebraska public bodies to hold electronic meetings beginning December 1, 2020 and continuing through January 31, 2021.
Virtual Meetings Permitted
Executive Order 20-36, which can be found here, provides that school boards “may meet by videoconference or by telephone conferencing or by conferencing by other electronic communication so long as there is made available at such meeting access to members of the public and to members of the media.”
The order was updated soon after its initial release. One of the “WHEREAS” clauses made a reference to 10-person limitations on gatherings, which did not accurately reflect the restrictions in the now-effective Directed Health Measures. The Governor’s office removed that reference, so as long as your meeting is compliant with the current DHMs for your community, you can still meet in person. As of the date of this post, that’s 25% of the selected meeting room’s rated occupancy, and all attendees must be able to social distance.
Back to the EO, while it waives the requirement to hold in-person meetings, it is important to remember that all other provisions of Nebraska’s Open Meetings Act still apply, including the advanced publicized notice and agenda requirements.
Guidance from the Attorney General
The Attorney General posted additional guidance about how the Executive Order would be interpreted by his office. This guidance can be found here, and if it looks familiar, that's because it piggybacks off the prior guidance issued in light of the similar Executive Order issued in March.
Notably, this guidance states that if a board elects to have an in-person meeting, the meeting must be open to the members of the public and press who wish to attend. This would apply in any instance where a quorum is physically present in one location to meet, even if other members are participating electronically. Remember, though, that the Open Meetings Act always permits a board to meet in its usual meeting place, even if that means the board cannot accommodate all members of the public who wish to attend that meeting in the usual meeting place. We believe that this means a board can meet in its usual meeting place so long as it can accommodate some members of the public under the new DHMs, and may limit attendance at that meeting consistent with the gathering restrictions.
Additionally, the Attorney General “highly recommends” that notice for virtual meetings indicate that the meeting will be held electronically and clearly state how the meeting may be accessed. According to the guidance, if no quorum of the board will be physically present together, the meeting’s notice should also indicate that there will be no public in-person attendance.
Individual Board Members Participating Electronically if Quarantined/Isolated
Also keep in mind that a prior Executive Order, 20-34, permits any single board member to attend, vote, and participate electronically if that board member has been ordered to quarantine or isolate pursuant to the current DHMs. This authority only extends to December 31, whereas the virtual meetings EO discussed above applies through January 31.
Meetings in December in January
In light of the new executive order, boards have several options for how to hold their December and January meetings:
Meet in person in your usual meeting place. However, this must be done within the gathering size limitations and in a space that is large enough to permit social distancing as required by the executive order. Because the Open Meetings Act clearly permits a board to meet in its usual meeting place regardless of its ability to accommodate the expected audience, we believe that means capacity at the meeting may be capped in light of the Directed Health Measures, and attendance may be limited to a first-come-first-served basis. If you do not believe your usual meeting place will be sufficient to accommodate your expected audience in light of the Directed Health Measures, you may want to consider broadcasting the meeting so that it may be accessed by more members of your community in a safe manner.
Meet in person in a larger space that can accommodate the expected audience. This also must be done in compliance with the Directed Health Measures. Keep in mind that if you meet outside of your normal meeting place, you must make reasonable efforts to allow any attendees to see and hear the meeting. You may need to use microphones, for example.
Have a “hybrid” meeting where no quorum of the board is present, but some members attend in-person and others attend electronically. For example, you could have 3 board members attend in person and 3 board members attend virtually. To do so, you will need to comply with the requirements of the EOs and follow the AG’s guidance.
Have an electronic meeting where no quorum of the board physically meets in one location. To do so, you should follow the AG’s guidance regarding notice.
We hope this information was helpful as you turn your attention to upcoming board meetings. If you have any questions about Open Meetings Act requirements, DHMs, meeting notices, EOs, or any other issues, feel free to contact any one of us at KSB by using our full team email: ksb@ksbschoollaw.com