On Friday, March 20, the New Jersey School Boards Association hosted a podcast on the topic of board compliance with recent social distancing directives while conducting necessary public functions. The most recent postings and resources from the New Jersey Department of Education can be found here.

The discussion featured Ray Pinney, director of member engagement, along with Carl Tanksley and John Burns, both attorneys with the Association. During the podcast, both attorneys fielded some of the more pressing issues and took questions from the attendees. These are some of the highlights.

Question – While it is possible during emergencies that boards can have remote participation, they still need to adhere to the principles of OPRA. What are the core principles of OPRA that they must take into consideration?

Answer – During this state of emergency, boards are not only permitted, but in certain cases may be required to convene a meeting to conduct necessary public business. To that end, boards (excluding committees of less than a quorum) must comply with the provisions of the Open Public Meetings Act (OPMA), including:

  1. Ensuring the right of the public to attend and observe, and publicly comment;
  2. Adequate (48 hour) notice.

On March 23, the Department of Community Affairs Division of Local Government Services issued “Local Operational Guidance – COVID -19.”  This guidance states, “[i]n light of the Governor’s issuance of Executive Order 107, we have been strongly encouraged to conduct all public meetings subject to the Open Public Meetings Act exclusively using communications equipment (e.g., telephonic conference call-in connections, internet streaming, etc.) for the foreseeable future without providing a physical meeting place. (Emphasis added.) The guidance goes on to note that boards remain obligated to provide adequate (48-hour) public notice, but during the declared emergency, electronic notice is sufficient to replace written notice to the two official district newspapers. However, where the board only publishes notice electronically, discussion must be limited, “to the extent practicable… to matters necessary for the continuing operation of government which relate to the applicable emergency declaration.”

To provide additional clarity during these ever-changing developments, it should be noted that on March 12, the New Jersey Division of Local Government Services (DLGS) posted a guidance letter to its website, entitled, “Health Emergency-Public Meeting Guidance – 03/12/2020. That guidance confirmed the ability of boards to convene a meeting using technology. However, the March 12 guidance indicated that boards should have an “advertised meeting place …unless otherwise directed by state or local emergency management or health officials, consistent with Executive Order 103 (Murphy 3/9/2020).” In light of the March 23 guidance, the March 12 guidance appears to have been reversed in that public meeting places now are not required.

In addition, on March 19, the Assembly introduced A3850, which was signed by the governor. This bill allows public entities, including boards of education that are operating during a declared state of emergency, to perform the following functions by means of communication or other electronic equipment:

  1. Conduct a meeting and any necessary public business;
  2. Cause a meeting to be open to the public;
  3. Vote; or
  4. Receive public comment.

The bill also allows a public body to provide notice of meetings electronically through the internet during the declared emergency, but requires that public bodies who exercise this option limit, to the extent practicable, the public business conducted at that meeting to matters necessary for the continuing operation of government and that relate to the applicable emergency declaration.

Of course, boards are encouraged to consult with their board attorney for the latest updates.

Question – Let’s deal with public observation and participation. If most of the members are participating via technology, does the public need to be able to see and hear everyone remotely?

Answer – In convening a remote public meeting, the board must ensure that the “advertised meeting place” has adequate technology to allow all members of the public who attend to see and observe the process. The board has to ensure that the district has the technological capacity to host the meeting so that each person participating remotely has sufficient access to the meeting.

Question– Are you required to allow the public to have an opportunity to participate remotely?

Answer – The Local Government Services memo mentioned above reminded boards that they are required to provide a means of public comment even if a meeting is held remotely. In addition, A3850 explicitly provides boards with the authority to allow public comment remotely during a declared state of emergency. Further, if a local unit currently records the audio or video of its meetings, that board should continue to record a remote meeting.

Question – At a public meeting, is it okay, considering public health concerns, to make sure the public is spaced far apart?

Answer – Prior to convening a public meeting during the present state of emergency, boards are strongly encouraged to consult with their local health officials to address developing health concerns. The local board of health will have ideas on how best to conduct the meeting or whether it must be held in a different physical space or whether it should be convened at all.

Question– What happens if more than 50 people attend a board meeting?

Answer – On March 21, Governor Murphy issued Executive Order 107, which required all persons in the state to stay home with certain exceptions. One of those permissible exceptions is “7) leaving the home for an educational, religious, or political reason…” However, that exception does not specify the size of the meeting if convened for a political reason. Earlier in the order, the governor noted that as of March 15, 2020, the CDC recommends that for the next eight weeks, gatherings of 50 or more people be canceled or postponed throughout the United States; and that as of March 16, 2020, the White House went further than the CDC had and recommended that Americans avoid social gatherings in groups of more than 10 people. Therefore, boards should consult with their local boards of health to determine the appropriate number of in-person attendees and the proper social distancing procedures that should be followed.

Question – Can a board of education hold a meeting in which a quorum is not physically present?

Answer – Neither A3850 nor the Local Government Service guidance address that specific question. The Division of Local Government Services is aware that various state entities do not require a physical presence in order to conduct business. Therefore, it may be inferred that a quorum is not necessary. However, boards are urged to consult with their local board attorney for the most recent information on this question.

Question – What about closed or executive session meetings?  What are the issues surrounding executive session meetings?

Answer – According to the Local Government Service guidance, “[l]ocal units holding meetings remotely are advised to avoid entering executive or closed session unless the topic of concern is urgent, directly affects the health, safety, or welfare of residents, and is an allowed exception as listed in N.J.S.A 10:4-12, given the difficulty of ensuring only appropriate individuals are on the line during a separate session. If an executive or closed session is necessary, local units must use a mechanism that ensures the confidentiality of a closed session. To this end, after announcing the executive or closed session at the public portion of the meeting consistent with the Act, a local unit may consider using a separate, non-public, dial-in mechanism for the executive or closed portion of the meeting.”

Question– When a board advertises for a meeting and there is a remote participation option, does the board have to also notify the public of instructions on how to participate?

Answer – Yes. Local units are reminded that they are required to provide a means of public comment even if a meeting is held remotely. Local units should also provide guidance to the public for remotely accessing and providing comment at a meeting.

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