*******You will be able to find all of the guidance from KSB School Law, and it will be updated, at this site: https://www.ksbschoollaw.com/covid19*******
We’ve seen many school districts close their doors temporarily in response to the COVID-19 or coronavirus. Many other districts are thinking about doing the same. We wanted to share our thoughts about some of the questions we’ve heard about how to take certain actions if the school is closed and board meetings are cancelled.
May a School Board Hold a Meeting by Video or Telephone?
No! We can hear you now. “But I know lots of organizations that hold meetings this way.” And you’re right. All state agencies, boards, commissions, councils, and committees may hold such meetings. Entities formed under the Interlocal Cooperation Act and the Joint Public Agency Act may hold meetings electronically. So can the ESUCC, community colleges, and a couple of other public entities. But school districts are not on the list. Schools may allow any member of the public to attend a meeting by video or telecommunications equipment, but that rule does not include board members. As Judge Smails put it 40 years ago, “You’ll get nothing and like it!”
If We Hold A Meeting, May the School Force Patrons to Watch the Meeting from a Separate Room by Video?
The public has the right “to attend” school board meetings. As indicated above, schools may also allow any member of the public to attend a meeting by video or telecommunications equipment. But we cannot find any authority which would allow you to force patrons to “attend” the meeting by watching the meeting on a video screen in another room. If your region has a significant COVID-19 outbreak, please contact your school attorney before taking any steps restricting the public’s ability to attend your meetings.
May We Delegate Certain Authorities and Powers to the Superintendent or Another Person?
The ability of the school board to delegate its duties to employees or others typically depends on the type of duty involved, the statutory language, and legislative intent. The general rule is that a governmental board may not delegate its powers involving the exercise of judgment and discretion, but duties which are purely ministerial and executive may be delegated. We can hear your now: “Save your legal mumbo-jumbo for the next guy. What can our superintendent do on behalf of the district if the board doesn’t meet?” Unfortunately, the line between discretionary functions and ministerial or executive functions isn’t always clear. Our best advice is that the board likely CAN delegate the authority to make regular payroll (because that is ministerial) but CANNOT give the superintendent or other staff member blanket authority to pay all claims and sign all contracts (because that would involve discretion).
May the board lawfully delegate the authority to hire new staff members to the administrative team? What about the renewal of existing staff contracts?
School boards are statutorily required to approve employment contracts for newly hired certificated staff. That duty cannot be delegated. Employment contracts for certificated staff “rollover” and automatically continue for another year unless action is taken by the school board by April 15th (unless there is an earlier date required by employment contract, negotiated agreement, or school policy) to nonrenew, terminate, cancel, or amend them. This authority also cannot be delegated to an employee.
If we hold a special meeting, can we go into closed session to talk about all of this stuff NOW, and plan for what we want to do based on staff requests, parent requests, and possible school closures?
Maybe! The Open Meetings Act allows school boards to meet in closed session to conduct “strategy sessions with respect to collective bargaining.” This would entitle the board to enter closed session to consider the proposed medical leave addendum put out by the NSEA, or another addendum or contract you have received from your legal counsel. Outside of collective bargaining, there are no stated reasons in the law to permit a closed session related to coronavirus issues.
In general, we do believe you can use closed session for contract negotiations (such as with administrators or classified staff), for the same public policy reasons you can use closed session for negotiations. You may also be able to enter closed session to receive and discuss legal advice, to avoid waiving the attorney-client privilege. However, before you do so you, you should check with your school or ESU legal counsel.
Can we skip a regular meeting in one or more months?
Technically, no. Section 79-554 states, “Regular meetings shall be held on or before the third Monday of every month.” However, the board is permitted to excuse absences of board members who may be sick, and you can hold a meeting with a simple majority of members: “In all meetings of a school board of a Class III school district, a majority of the members shall constitute a quorum for the transaction of business.”
In the event of mass closures or forced closures, we intend to reach out to the Nebraska Attorney General’s office for guidance on these questions.
Conclusion
As you can see, simply suspending the meetings of a board of education is not something that can be undertaken lightly. As we understand the advice from public health officials, crowds of more than 10-20 people should be avoided. We think that likely means that your boards will be permitted to continue holding regular meetings, even if you do close your school for a period of time. There’s a good argument that you should hold at least your regular meetings, which by statute are required monthly.
If you have any questions about your school skipping its regular school board meeting, we recommend you contact your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.