In his daily COVID-19 briefing on March 19, 2020, Ohio Governor Mike DeWine announced that the General Assembly would be reviewing legislation during the week of March 23, 2020, that would expressly permit public bodies to conduct board meetings remotely without in-person attendance by board members. Specifically, H.B. 557 has been proposed with the following title: “To enact section 121.221 of the Revised Code to authorize public bodies to meet via teleconference and video conference during a public health state of emergency as declared by the Governor, and to declare an emergency.” The bill provides that during the pendency of any declared public health state of emergency, members of a public body may attend meetings by means of teleconference or video conference and will be considered present in person at the meeting, permitted to vote and counted for purposes of determining whether a quorum is present at the meeting.  The bill also requires the public body to make provisions for public attendance at a location involved in the teleconference or video conference.

Attorney General letter

On March 13, 2020, Ohio Attorney General Dave Yost issued a letter of guidance related to the OMA for the purpose of reconciling earlier orders from the governor and the Ohio Department of Health, which had prohibited mass gatherings and urged social distancing, with the OMA’s requirement that members of a public board be present “in-person” at public meetings to be considered present for establishing a quorum and voting. The Attorney General’s letter states, in pertinent part:

“In this limited circumstance, where the Governor has declared a state of emergency and the Director of the Ohio Department of Health is limiting gatherings so as to prevent the spread of COVID-19, but the business of government must continue, it is reasonable to read the OMA’s ‘in person’ requirement as permitting a member of a public body to appear at a public meeting via teleconference. This interpretation gives effect to both R.C. 121.22 and R.C. 3701.13. It is also consistent with the United States Centers for Disease Control’s recent guidance, issued in response to the national COVID-19 epidemic, to use videoconferencing for meetings when possible.”

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“Although the OMA does not specifically dictate how a meeting is made ‘open’ to the public, in the interest of complying with both Dr. Acton’s Order and the OMA a meeting could be made ‘open’ to the public by live-streaming it through the internet or on television. If a public body gives the public access to a meeting electronically and the members of the body appear telephonically, the body must still ensure that the public is able to hear the discussions and deliberations of all of the members, even those who are present via telephonic means. Finally, all other requirements of the OMA will apply, including those that govern notice, executive session, and the taking of meeting minutes.”

The letter goes on to state that political subdivisions “should discuss this matter with [their] legal counsel before making any decisions.” Understanding that the events we are all grappling with are unprecedented, the following is Bricker’s suggested course of action for public boards that intend to use teleconferencing in order to conduct public business.

Conducting public meetings by electronic means

While public boards must take the steps necessary to protect the public, they should also provide various means for the public to monitor what is happening at board meetings throughout this period. 

Here are suggested issues to consider:

1. May the public be barred from physically attending meetings? R.C. 121.22 requires that board meetings be open to the public. If the public is prohibited from attending in person or urged not to attend by Ohio Department of Health orders, the board should ensure its meetings are viewable by electronic means and notify the public in advance of the meeting. In such case, the board can also read public comments provided in writing, should it opt to do so. 

2. May board members attend meetings by electronic means? 

1. In-person. Members of the board, when possible, should attend in-person and, when doing so, should engage in social distancing of at least six feet during the meeting as urged by prior orders from ODH. H.B. 557, or other emergency legislation, may modify the in-person meeting requirements of the OMA.
    
2. Teleconference participation. The following is a proposed process for conducting board meetings by teleconference based on teleconference statutes available to Ohio port authorities and Ohio regional airport authorities authorized by the General Assembly in 2017. These statutes presume some in-person attendance, but pending legislation may modify or eliminate the in-person attendance requirement.

1. The board must establish a primary meeting location that is open to the public with at least one board member in attendance in person;
2. Meeting-related materials that are available before the meeting must be sent via electronic mail, facsimile, hand-delivery, or United States postal service to each board member;
3. In the case of an interactive video conference, the board must cause a clear video and audio connection to be established that enables all meeting participants to see and hear each board member;
4. In the case of a teleconference, the board must cause a clear audio connection to be established that enables all meeting participants to hear each board member;
5. All board members must have the capability to receive meeting-related materials that are distributed during a board meeting;
6. A roll call voice vote must be recorded for each vote taken;
7. The minutes of the board meeting must identify which board members remotely attended the meeting by interactive video conference or teleconference;
8. No more than one board member remotely attending a board meeting by teleconference is permitted to be physically present at the same remote location as another board member;
9. The board must establish a policy for distributing and circulating meeting-related materials to board members, the public and the media in advance of or during a meeting at which board members are permitted to attend by interactive video conference or teleconference; and
10. The board must establish a method for verifying the identity of a board member who remotely attends a meeting by teleconference.

c. Ratification. The board should consider ratifying any board actions made via teleconference prior to the enactment of H.B. 557. Ratification should occur at the next opportunity when an in-person quorum can be accomplished or at a meeting that otherwise complies with the OMA. Clients should understand that to date court recognition of retroactive ratification has been mixed. In these challenging times, each governing board is encouraged to consult with its legal counsel to discuss the solutions for decision-making that best serve its particular needs.

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