Legally Speaking: The Pandemic Inspires New Rules for Conducting Virtual Meetings

The pandemic has affected many different aspects of district operations, including board governance. Since March 2020, the Legislature has enacted two new laws clearly giving boards the authority to conduct meetings remotely. These laws protect public health while giving boards the flexibility they need to meet the challenges of conducting meetings in these unprecedented times.

The pandemic has also affected board attendance at meetings. In August 2020, an administrative law judge was faced with the question of whether to keep a board member off his board for missing three meetings where COVID-19 caused his work schedule to be temporarily changed. The judge’s determination helped clarify for boards of education what is required when seeking to remove a member for lack of attendance.

Below we examine these changes in statute and case law and their impacts on board operations.

Basic Board Meeting Requirements The Open Public Meetings Act defines a meeting as: “any gathering … attended by, or open to, all of the members of a public body, held with the intent … to discuss or act as a unit upon the specific public business of that body.

“Meeting does not mean or include any such gathering attended by less than an effective majority of the members of a public body, or attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.” Without an effective majority — five members on a nine-member board, for instance — the meeting cannot take place.

Participating in a Meeting via a Telephone or Video Conference Call There were two laws enacted in 2020 that explicitly authorized boards to hold virtual meetings over the internet. In March 2020, N.J.S.A. 10:4-9.3 was enacted which amends the Sunshine Law to specifically authorize boards to conduct virtual meetings. Boards may use technology to “cause a meeting to be open to the public, vote, or receive public comment.”

Further, the law states that performing such functions by means of communication or other electronics does not violate the Sunshine Law, making clear that it was the intent of the state Legislature to permit remote meetings. While the pandemic was the impetus for this law, the statute makes clear that a board of education (or any other public body) may hold virtual meetings over the internet, even if there is no state of emergency. In so doing, the Legislature has made permanent the board flexibility for the holding of virtual meetings. While boards in the past may have had some remote participation by board members prior to the pandemic, this law makes explicit that authority.

In May 2020, a second piece of legislation was enacted authorizing remote meetings by public bodies. N.J.S.A. 52:27D-18.11 states that its provisions must be “consistent with” the Sunshine Law. This statute permits a local public body to conduct a public meeting remotely by electronic means, provided that reasonable public notice and provision for public input is made under the circumstances. Next, the statute says that it can only be used during declared states of emergency. There is no provision that permits this statute to be used when there is no state of emergency.

Both statutes contain a provision permitting the promulgation of regulations. Under N.J.S.A. 10:4-9.3, the State Board of Education is authorized to promulgate regulations for boards of education, while under N.J.S.A. 52:27D-18.11, the N.J. Department of Community Affairs is authorized to issue emergency remote meeting regulations for any “local public body”— a new term to add to the open meetings lexicon which is defined as a public body whose jurisdiction is a county or smaller. The State Board of Education never issued regulations as it was authorized to do under N.J.S.A. 10:4-9.3, however, the Department of Community Affairs did issue emergency regulations in conformity with N.J.S.A. 52:27D-18.11.

The emergency regulations were issued in September 2020 and cover many aspects of both remote and in-person meetings. The emergency regulations make clear that the required procedures are only for remote meetings held during states of emergency. The regulations first set out minimum standards for board of education virtual meeting platforms. The local public body shall use an electronic communications technology that is routinely used in academic, business and professional settings, and can be accessed by the public at no cost.

Participant capacity on the selected platform should be consistent with the reasonable expectation of the public body for public meetings of the type being held and shall not be limited to fewer than 50 public participants. Any presentations or documents that would otherwise be viewed or made available to members of the public physically attending a local public body meeting shall be made visible on a video broadcast of the remote public meeting or made available on the board’s website.

The board shall allow members of the public to make public comments by audio, or by audio and video if the remote public meeting is held over both audio and video, during the meeting. In advance of the remote public meeting, the local public body shall allow public comments to be submitted to the official responsible for creating the meeting agenda by electronic mail and in written letter form by a reasonable deadline. The meeting service used must meet federal standards for storing information in remote servers. Guidance released from the Department of Community Affairs accompanying the emergency regulations states: “Free software should be avoided to ensure data integrity and adequate privacy protections.”

Room Capacity Participant capacity in the meeting room shall be consistent with the reasonable expectation of the public body for public meetings. If the local public body meets in person, the regulations require members of the public to be able to attend the meeting in person. If a local public body is holding an in-person meeting where capacity restrictions reduce the number of people that can be present to an amount below that reasonably expected for the public meeting by the governing body, the local public body must either hold the in-person meeting at another place with adequate socially-distanced capacity, or hold the public meeting both in-person and as a remote public meeting.

A meeting held in-person for board members shall not prohibit members of the public from attending in person. It appears that the regulations permit two meeting scenarios: one where both the audience and the board participate remote only or the other where the board and the audience are both physically present with other audience members participating remotely. The regulations do not permit the board to meet physically without allowing the audience to do the same.

These requirements may pose some challenges for boards of education as they navigate these capacity requirements. In November 2020, Gov. Murphy signed Executive Order 196 declaring boards of education exempt from certain room capacity limits during the pandemic. This should give boards greater flexibility in accommodating a physical audience at their meetings.

Interacting with Members of the Public The emergency regulations require the local public body to facilitate a dialogue with the commenter to the extent permitted by the technology. If a member of the public becomes disruptive during a remote public meeting, including during any period for public comment, the member of the local public body charged with running the remote public meeting shall mute or continue muting, or direct appropriate staff to mute or continue muting, the disruptive member of the public and warn that continued disruption may result in their being prevented from speaking during the remote public meeting or removed from the remote public meeting.

Disruptive conduct includes sustained inappropriate behaviors, such as, but not necessarily limited to, shouting, interruption, and use of profanity. The regulations require that a member of the public who continues to act in a disruptive manner after receiving an initial warning may be muted while other members of the public are allowed to proceed with their questions or comments. If time permits, the disruptive individual shall be allowed to speak after all other members of the public have been given the opportunity to make their comment. Should the person remain disruptive, the individual may be muted or kept on mute for the remainder of the remote public meeting, or removed from the remote public meeting. This requirement to handle disruptive persons in a particular way for virtual meetings may differ from a board’s procedures on how to interact with disruptive persons when there is a physical meeting. Boards should consult with their attorneys concerning the implementation of this new requirement given the mandatory procedures.

Accepting Written Comments A board of education holding a remote public meeting shall allow members of the public to make public comment by audio, or by audio and video, if the remote public meeting is held over both audio and video, during the meeting.

In advance of the remote public meeting, the local public body shall allow public comments to be submitted to the official responsible for creating the meeting agenda by electronic mail and in written letter form by a reasonable deadline. The local public body shall have the discretion to accept text-based public comment received during a remote public meeting held through an electronic communications platform or internet-accessible technology.

Public comments submitted before the remote public meeting through electronic mail or by written letter shall be read aloud and addressed during the remote public meeting in a manner audible to all meeting participants and the public. If the local public body imposes a reasonable time limit on public comments, where permitted by law, the same limits can be placed on the reading of written comments. Each comment shall be read from the beginning, until the time limit is reached.

A local public body may pass over duplicate written comments; however, each duplicate comment shall be noted for the record with the content summarized. If the local public body elects to summarize duplicative comments, the local public body must not summarize certain duplicative comments while reading other duplicative comments individually.

These emergency regulations may prove challenging for boards of education, particularly the mandates on how to interact with members of the public and the need to read written comments at the board meeting among other requirements. Boards are urged to consult with the board attorney regarding these requirements.

Johnson v. Piscataway On Aug. 20, 2020 in what may be the first board member removal case related to the COVID-19 pandemic, an administrative law judge determined that a local board of education could not remove one of its own members for missing three consecutive meetings where the member’s schedule temporarily changed because of the pandemic and he could not attend the scheduled meetings.

In the case, the board alleged that the member missed four consecutive meetings on March 12, April 9, April 30, and May 14, 2020. The statute, N.J.S.A. 18A:12-3 says in part, “any member who fails to attend three consecutive meetings of the board without good cause may be removed by it.”

The board voted 6-3 to remove the board member for the missed meetings. The board member filed an emergency relief petition seeking to stop his removal from the board. In examining the board member’s claim, the administrative law judge determined that irreparable harm would result to the board member because loss of board membership is not something that can be redressed or compensated for through monetary damages. Additionally, emergent relief was needed because if the board member was removed but later the removal was found to have been improper, it could have the potential to interfere with the school board election as the subsequent vacancy would be on the ballot for a seat that should have never been put up for election. Additionally, once the election takes place, it would have the potential to harm the court’s ability to even consider restoring the board member to his seat.

Technical Problems, Essential Worker’s Schedule Were Obstacles For one of the meetings that the board member allegedly missed, the board member was in attendance for at least 13 minutes. The meeting was held virtually as a result of the pandemic and the board member, an officer with the state corrections department, participated in the meeting during a break. However, due to technical difficulties with Zoom, the member could only participate for 13 minutes. While the board argued that participation for such a short amount of time constituted an absence, the judge could not find anything in policy or law permitting the board to do that. Further, the judge determined that the board’s actions did not meet the “good cause” requirement.

Good cause “clearly means, in the particular circumstances obtaining, without a ‘reasonable excuse’ as that term is generally understood as a matter of plain common sense.” The “circumstances here hardly warrant the stigma and opprobrium of a removal for failure to attend a meeting where the failure was due to technical difficulties experienced at the board’s first Zoom meeting during a global pandemic.” The judge also noted that the board member was an essential corrections employee who had to work to cover other employees who became ill with COVID-19 and has since adjusted his work schedule to be able to attend the meetings. The judge also reasoned that, given the particular circumstances of the case where the absences were due to COVID-19 affecting his work schedule, and technical difficulties in being able to stay connected to one of the meetings, an issue that affected at least three other members, the judge concluded that the board member’s arguments had merit.

Additionally, the judge observed that the board member had more than two years left on his term and his removal “undermines the will of the public who elected him and unduly smears his reputation.”

Thus, the judge concluded that the board’s decision to remove the member under the circumstances presented was arbitrary and capricious. The judge reinstated the individual to the board.

Lessons Learned Boards should take away the following insights from this case. Before removing a board member for missing three meetings the board should be sure that it considers the following before instituting removal proceedings:

• Ensure that the absences are clearly documented.
• Has the board treated other similarly situated board members in the same manner concerning absences?
• Are the reasons for the absences out of the control of the board member, are they of limited duration, and is the board member actively trying to attend the meetings?
• How much time is left on the board member’s term?

COVID-19 has brought unprecedented challenges for boards of education. One key to navigating this landscape is to make sure that the board has clear, enforceable policies concerning remote meetings and also board member attendance. Through clear policies and legal assistance from the board attorney, your board of education should be able to successfully navigate the governance issues that arise during the pandemic.

John Burns is an NJSBA counsel in the Association’s Governmental Relations Department.