Due to the global pandemic of COVID-19, school districts and governmental entities across the State of Wisconsin have either closed completely or are operating in a limited capacity. This closure has called into question how governing boards should operate as it relates to complying with Open Meetings Law. Under Open Meetings Law, “all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law.” This presents an undeniable problem as COVID-19 has all but rendered most public gatherings impossible or ill-advised.

IMPACT OF COVID-19 ON WISCONSIN OPEN MEETINGS LAW – QUICK SUMMARY

On March 16, 2020, the Wisconsin State Attorney General’s Office released advisory correspondence in response to inquiries regarding Open Meetings Law compliance, explaining the following:

• Governmental bodies can comply with Open Meeting Laws by conducting meetings via telephone conference or video conference, though not all meeting topics are appropriate or advisable for remote conferencing such as disciplinary hearings, or where complex plans, charts, or drawings are needed for display;
• The meeting must be preceded by a notice providing the time, date, place, and subject matter of the meeting, generally with at least 24 hours advance notice of the meeting;
• If the meeting is held by teleconference or video conference, the governmental body must provide the public with a means to access and monitor the conference, with 24 hours advance notice of how to access and monitor the meeting;
• Generally, meetings are held in a publicly owned (or private) place and must be readily accessible to the members of the public (emphasizing that “readily accessible” may be accomplished by teleconference or livestreaming if your Board chooses to use those options); and
• Appropriate accommodations should be made to make the meeting accessible to the deaf, hard of hearing, and those without the internet or a telephone.

SCHOOL BOARDS AND LOCAL GOVERNMENT ARE EXEMPT FROM PROHIBITION ON MASS GATHERINGS

On March 17, 2020, Governor Evers prohibited mass gatherings of 10 or more individuals to slow the spread of COVID-19, and is in place until further notice. However, the Order expressly exempts local government facilities and educational institutions for non-instructional purposes. Under this exemption, school boards and local government boards may still meet to govern their organizations accordingly. Despite this exemption, COVID-19 still makes for challenging circumstances for boards and the public to meet, as social distancing and other CDC and local/state health department recommendations must be met to protect all those in attendance from exposure to COVID-19. In addition, the board must still find ways for the public to be informed. In all likelihood, board meetings would gather more than a few individuals other than the board members themselves, making it difficult to hold in-person meetings during this pandemic. Under the current circumstances, most boards may elect to meet virtually or via teleconference. The Open Records Law appears to be flexible enough to allow for this as evidenced by the Department of Justice’s Advisory. However, boards with the technological capabilities must do everything they can to promote public access to any virtual stream or teleconference. If your board continues to meet in person, social distancing should be an ongoing practice during the pandemic. Boards should encourage those individuals whom are physically present to sit farther away from one another and practice all CDC and state/local health department recommended hygiene practices.

RECOMMENDATIONS

• Boards that have policies indicating Board members may not vote and/or participate remotely or set other limitations on remote participation, such as limitations on the number of board members who must be physically present, should consider waiving or amending that part of the policy to allow for remote conferencing in lieu of an in-person board meetings. Prior to the meeting, the waiver or amendment should be added as an agenda item, and there should be a memorandum or written recommendation regarding the decision to allow remote participation;
• Research the multiple programs and services available for livestreaming and free video or teleconferencing, keeping in mind the capacity to accommodate your board members and the general public;
• Any future notices to the public and the media should alert them that board members may be participating remotely;
• Provide as much information as possible on your notice to the public on how to access the meetings, especially if they will be available by livestream, videoconferencing, telephonic or other virtual meeting option;
• If any portion of the meeting is open to the public or has board members attending in-person, practice social distancing (including seating at least 6 feet apart), follow other CDC and state/local health department recommendations to avoid the risk of exposure, and encourage the general public to do the same if your meetings are held in public; and,
• Consult your legal counsel regarding available options and procedures based on your specific policies.

Ultimately, complying with Open Meetings Law under the current circumstances may look different from one community to the next. How to appropriately conduct your meetings should be determined on a case-by-case basis.

If you have any questions or concerns regarding compliance with the Open Meetings Law or need your Board policy reviewed during the COVID-19 pandemic, please contact Saveon Grenell at sgrenell@buelowvetter.com or (262) 364-0313, Claire E. Hartley at chartley@buelowvetter.com or (262) 364-0260, or your Buelow Vetter attorney.