COVID-19: Navigating a state's open meetings act

Multiple state governments, including Ohio, Illinois and Michigan, have issued varying bans on mass gatherings in response to the rapid spread of COVID-19. Together with President Trump’s guidance to limit gatherings of people to 10 or fewer, these bans have left local governments and other public bodies scrambling while trying to navigate the requirements surrounding open-meetings.

Ohio: Mass gatherings that bring together 50 or more persons are prohibited indefinitely.
Illinois: All public and private gatherings of 50 people or more are prohibited indefinitely.
Michigan: All assemblages of more than 50 people in a single indoor shared place are prohibited until April 5, 2020.
Florida: Although a state of emergency has been declared, only local governments have the authority to ban mass gatherings. Some local governments, such as Miami-Dade, have taken steps to cancel large events.

State requirements for public body meetings vary but the purpose behind a state open meetings act generally remains the same. These laws entitle citizens access to the public meetings of any state or local legislative or governing body and grant citizens the right to know what takes place at the meetings and what decisions government officials make during them. However, due to the widespread bans in response to COVID-19, public officials are having a difficult time reconciling the requirements that these meetings be held in an open space, accessible to the public. Without direct guidance, the bans on mass gatherings can leave public officials guessing on how to avoid potential violations.

Some states, including Ohio, Illinois and Michigan, have addressed these potential issues and have offered guidance that may be useful for other public bodies and officials in determining what steps are necessary to uphold government accountability and transparency while also safeguarding the health of the community.

Ohio
Attorney General Dave Yost has been reluctant to opine that Ohio’s Open Meetings Act permits any exceptions to the rule requiring voting members of deliberative body (such as a city or village council, board or commission) to conduct meetings in person, even during the COVID-19 pandemic. However, on Friday, March 13, Yost circulated a letter to local Ohio officials suggesting that “under this very limited fact pattern, there may be a basis for local public bodies to use electronic means to meet and comply with [Ohio’s Open Meetings Act].” Yost wrote that because the March 12 order from Dr. Amy Acton, Ohio’s Director of Health, granted her department “ultimate authority in matters of quarantine and isolation,” requirements under Ohio’s Open Meeting Act may need to be reconciled with her order. Consequently, Yost determined that, under the current circumstances, it is reasonable to read Ohio’s Open Meetings Act’s in-person voting requirement to permit a member of a public body to appear at a public meeting via teleconference or telephone provided the public is still able to see or hear the official deliberate and vote.

The hazards of Open Meetings Act violations are plenty, including the invalidation of any legislation unlawfully adopted, so municipal officials who are not yet fully persuaded by the guidance from the attorney general may have other options. Since March 13, for example, legislation has been introduced in the General Assembly that may soon provide relief from in-person meetings under the Open Meetings Act during the COVID-19 crisis, and we will monitor the progress of that legislation. Additionally, General Yost has offered his assistance by seeking from Governor Mike DeWine an executive order that would directly suspend in-person voting requirements of the Open Meetings Act. Finally, governments operating under home-rule charters may also be able to adopt exceptions to the state law’s in-person voting requirement, and we are available to assist with drafting and advice related to these hyperlocal efforts.

Officials are particularly wary of Open Meetings Act violations due to potential consequences proposed by S. B. No. 293. Although the bill has yet to pass in the Ohio House, if approved, the bill would allow any person, in response to an official meeting being invalidly closed to the public, to 1) file a complaint with the clerk of court of claims or the clerk or the court of common pleas; or 2) bring an action for injunction in the court of common please in the county in which the public body involved is located. According to the bill, an action can be brought for up to two years after the alleged violation or threatened violation. This could be particularly troubling if the bill successfully passes through the House and meetings held during the COVID-19 emergency are subsequently found to be invalid.

Illinois
In a direct response to the new obstacles created for public officials, Illinois Governor JB Pritzker issued an executive order on March 16, which directly suspended the requirement under Illinois’ Open Meetings Act that members of a public body be physically present in order to conduct business. Additionally, Governor Pritzker stated:

Public bodies are encouraged to postpone consideration of public business where possible. When a meeting is necessary, public bodies are encouraged to provide video, audio, and/or telephonic access to meetings to ensure members of the public may monitor the meeting, and to update their websites and social media feeds to keep the public fully apprised of any modifications to their meeting schedules or the format of their meetings due to COVID-19, as well as their activities relating to COVID-19.

Governor Pritzker stressed that following the recommendations of the Illinois Department of Public Health’s and the World Health Organization’s recommendations and protecting the public’s health were imperative in combatting the global pandemic.

Michigan

In an effort to avoid confusion caused by the ban on mass gatherings, Governor Gretchen Whitmer released a subsequent executive directive on March 13, directly addressing public meetings during the COVID-19 emergency. Similarly to Ohio and Illinois, Governor Whitmer stressed the importance of government accountability and open government decision making but recognized the limitations placed on adhering to Michigan’s Open Meetings Act. As such, Governor Whitmer directed the following:

1. All public bodies of departments and agencies of the [State of Michigan], including but not limited to boards, commissions, committees, subcommittees, authorities, and councils, must, to the extent practicable, consider postponing public meetings and/or agenda items that may be deferred until a later time.
2. All public bodies of departments and agencies of the [State of Michigan] subject to [Michigan’s Open Meetings Act] that must continue to meet must do so by means sufficient to enable meaningful access and communication for all participants. Participation by remote access technology, including conference calling, real-time streaming, or other platforms is acceptable, and sufficient to form a quorum, so long as public access and participation is preserved.
3. Public notice of the time and date of each meeting of a public body of a department or agency of the [State of Michigan] subject to [Michigan’s Open Meetings Act] must be given in the manner required by [Michigan’s Open Meetings Act], which includes publication of the notice on the public body’s internet website. The public notice must include sufficient information such that the public’s right to address a meeting of the public body is preserved.

While Governor Whitmer’s March 13 order applies to state entities, it does not extend to local entities.  On March 18, however, the governor issued a new order that expands similar protective measures to all public voting bodies in Michiagn. Those bodies can met outside the normal open-meetings environment provided:

• Telephone or videoconferencing is permitted.
• The members of the public body must be able to hear each other; the public must be able to hear the public body; and, during the public comment period, the public must be able to hear each other.
• The public body must post notice of the electronic meeting on the entity's website homepage or public-notice page, along with a link the public may use to access the meeting (which must be free and not require any online registration).
• Roll-call votes and encouraged and;
• Closed or executive sessions are still permitted during an electronic meeting.

In addition to the above, a multitude of other states are tackling the obstacles imposed by mass gathering bans. For example, Rhode Island, Texas and New York have all suspended “in-person” requirements under the states’ respective Acts.

For questions or more information, please contact McDonald Hopkins' Public Law Practice Group.