For a few months now, we’ve been operating under directed health measures (DHMs) that center on 10-person limitations. Last week, the Department of Health and Human Services released an outline of changes to upcoming DHMs as part of “Phase II” of Nebraska’s COVID-19 response.
**[Note: if your school or ESU is located in Hall, Hamilton, Merrick, or Dakota Counties, your DHMs will be the Phase I type. The information below does not apply to you. You should consult with your legal counsel about what that means for your board meetings in June.]
Under the Phase II DHMs, beginning June 1, the number of people in a “gathering” in one location will generally increase from 10 to 25, or as much as 25% of that space’s rated capacity. Club baseball, softball and volleyball teams can begin practices. And school gyms and weight rooms may open so long as they follow the DHM requirements. This also will allow school districts to undertake some in-person instruction and services this summer.
As we emphasized in our KSBlog post last week, the Phase II DHMs do not require school districts to reopen their facilities. However, the new DHMs do require school districts to think through how they are going to hold their June board meetings, as your options have changed once again.
A little recent history:
On May 19, 2020, the Governor signed Executive Order 20-24, which extends Executive Order 20-03 through June 30. Remember that EO 20-03 allows boards who cannot otherwise do so to meet electronically due to COVID-19 by waiving certain requirements under the Nebraska Open Meetings Act. We covered all of that extensively, and you can access it and all of our other information on KSB’s COVID-19 page.
Some political subdivision boards (like the Lincoln City Council) were reluctant to take the Governor up on that flexibility, based on a variety of concerns. But many boards did meet electronically. The e-meetings played to mixed reviews and led to some...interesting stories. On the other hand, we know that many board meetings were conducted efficiently, effectively, and, safely in the face of uncertainty.
Remember the Attorney General’s office has made clear that EOs 20-03 and 20-24 only allow boards to meet electronically and exclude the public and media from physical attendance when no quorum of the board is present together. If a quorum of the board gathers together, then the media and the public get to be in that room. If 11 people had shown up under the Phase I DHMs, then arguably you would have violated the DHMs even if you satisfied the Open Meetings Act. So, no, you cannot have the board and administrators gather together in one room and force the public and media to watch online or from another room.
But you can meet electronically through June 30, if you do so consistent with the law as modified by EOs 20-03 and 20-24. Which brings us to our next question:
How might the Phase II DHMs change your thinking on in-person board meetings occurring after June 1?
As proposed (find outline of changes here), the Phase II DHMs going into effect on June 1 will permit “gatherings” up to the greater of 25 people (excluding staff) or 25% of rated occupancy (not to exceed 3,000).
If you have a rated occupancy of 1,000 in your auditorium, you could have an in-person board meeting with your 6 board members present along with 244 of your most supportive patrons! Similarly, you can host the meeting in your regular meeting space and have a total of 25 people within that room, even if it is only designed to hold a smaller number. However, any such gatherings must follow physical social distancing requirements. Wherever you meet, if you meet in person, make sure the gathering size and social distancing requirements are met.
So, what are our options for meeting in June?
Meet in person in a space large enough to accommodate the board, other school officials, the public, and media. That must be done within the gathering size limitations and in a space that is large enough to permit social distancing. We imagine the commons area, auditorium, or gym would work for about any school in the state to hold an in-person meeting (unless you plan to talk about whether you’ll have sports in the fall...then the gym would be “full”). 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 all board members attend electronically. To do so, you will need to comply with the requirements of the EOs and follow the AG’s guidance.
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