Trenton, March 13, 2020–The NJSBA Legal & Labor Relations Services Department today issued an updated memo, concerning the use of technology and remote participation in public meetings. The document reflects guidance provided by the New Jersey Department of Community Affairs on March 12. NJSBA’s memo follows:
New Jersey School Boards Association staff regularly receive inquiries regarding the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 et seq., and the use of telephone conference calls, videoconferencing, and e-mail as a means of communication among board members and administration. Attempting to answer those questions continues to be challenging, primarily because the OPMA or Sunshine Law was enacted in 1975, long before the advent of widespread use of Internet technology. Therefore, it is often difficult to provide definitive answers. However, cases from jurisdictions outside New Jersey have begun to provide us with some guidance. In addition, the spirit of the Sunshine Law has aided us in making certain generalizations that we can share with you and your having an understanding of the spirit of the law should assist you in making decisions regarding your own communication with other board members.
A recent memo issued by the Department of Community Affairs, Division of Local Government Services, confirms that boards may utilize technology in convening a public meeting, but must have an advertised location for the meeting, and must provide guidance to the public in regard to remote access and public comment at such meetings. In addition, the memo discourages adjourning to executive or closed session during a remote access meeting unless the subject is urgent, directly affects the health, safety, or welfare of residents, and is a listed exception to OPMA, due to the difficulty of ensuring the confidentiality of such remote-access deliberations. Finally, the memo notes that if an executive session is necessary, boards may utilize a mechanism that ensures confidentiality and may even consider using a separate, non-public dial-in mechanism after announcing the adjournment of the open session of the meeting.
With respect to emergency meetings, the use of technology may be a viable option, so long as statutory mandates are satisfied. Prior to convening such a meeting, boards should become familiar with the emergency meeting provisions of OPMA, which, with certain exceptions, preclude a board from convening any meeting unless adequate notice has been provided. Those exceptions, as noted in N.J.S.A. 10:4-9, specify that in order to convene an emergency meeting without adequate notice, three quarters of the board members who are present at the call of the meeting must vote to hold the emergency meeting and the board must publicly announce and enter in to the minutes a statement to the effect of the following:
(1) The meeting is required in order to deal with matters of such urgency and importance that a delay in order to provide adequate notice would be likely to result in substantial harm to the public interest; and
(2) The meeting is to be limited to discussion of and acting with respect to those urgent and important matters; and
(3) Notice of such meeting is to be (or has been) provided by posting written notice in the regular public place utilized for such postings and by notifying the district’s two official newspapers by telephone, telegram, or delivery of a written notice; and
(4) Either (a) the board could not reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided; or (b) although the board could reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided, it nevertheless failed to do so.
The above procedure notwithstanding, the actual circumstances that allow a board to dispense with adequate notice and convene an emergency meeting are extremely fact-specific and context sensitive. For example, in adopting N.J.S.A. 18A:40-12, the New Jersey Legislature provided local boards of health with the authority to declare that an epidemic is so hazardous that it is necessary to close the schools. After making such a declaration, the local board of health must provide immediate notice to the school district. Upon receipt of that notice, the board has discretion to close the schools and may keep them closed until it is satisfied that the danger from the epidemic has passed.
However, the above statute does not address the means by which the board exercises the discretion to close the schools, whether the notice from the local board of health constitutes an emergency for OPMA purposes, or whether the board may utilize technology to convene an emergency meeting to discuss closing the schools.
Therefore, in advance of any crisis, boards may wish to consult with their local boards of health regarding the conditions under which such a notice may be issued and the degree to which such a declaration may result in substantial harm to the public interest if the board were to delay acting on the declaration until adequate notice could be provided. After such consultation, the board may wish to review the district’s emergency operations plan to ensure that public meeting notice requirements are addressed in the event of a public epidemic or other emergency. Of course, the board attorney should be involved in all such discussions.