When Decisions Matter.

Image:

The Sunshine Law, Virtual Meetings, and Public Comment in a Post-Shutdown World

On June 19, 2021 Governor Tom Wolf’s Amendment to Proclamation of Disaster Emergency—Coronavirus (COVID-19) was terminated by concurrent resolution of the General Assembly. So, what does this mean? The Emergency Declaration is over. You may also find yourself asking, “Well, what does this mean for school boards?” This termination of the Emergency Declaration means that school boards should, in fact, be meeting in-person and ensuring that their school district’s websites are updated to indicate that they will receive community members in-person and/or still have a virtual viewing available.

Emailed Public Comment

The Pennsylvania Sunshine Law (65 Pa.C.S. §§ 701-716) gives the public the right to comment on issues “that are or may be before the school board.” Agencies must provide a “reasonable opportunity” for residents and/or taxpayers to comment on an issue before a decisions takes place. In order to facilitate transition of the public to in-person meetings, to facilitate “reasonable opportunity” for public under the Sunshine Law, and to recognize the practical reality of our virtual society (which is not a society that was in place when the Sunshine Law was first written), the School Law Group at Stock and Leader recommends that school boards adopt operating rules as follows:

  1. Recognize and accept public comment emailed to the board at a set address, as listed on the school district’s website.
  2. Send emailed public comment to the members of the school board for their review prior to any committee or voting meeting.
  3. Establish the process detailing that emailed public comment (designated as such, and not just a “regular” email sent to the school board) will be attached or copied into the minutes of the meeting, in order to meet the definition of “public comment” under the Sunshine Law. Public comment is supposed to be recorded in the school board minutes, so if emails are designated as public comment, they need to be noted in the minutes as such.
  4. Make a notation about emailed comment in the minutes in order to provide the “public” access to the comment, without the need to read the comment or have it read to them. This provides a permanent place in the school board minutes, and avoids Right to Know Law requests for communications to the school board on what is already a public document, potentially.
  5. Advertise to the public that emailed public comment will not be read aloud, unless an individual requests as much on the basis of a reasonable accommodation on the basis of a disability.
  6. Make an announcement at the meeting (the Secretary of the school board should announce at the start of public comment), for purposes of the minutes, that the minutes will reflect receipt of “X number of emailed public comments” that will be included in the minutes, and that the school board received those prior to the meeting for review.

While our advice is that the emailed public comment need not be read into the record, make sure that the public has notice about the change in procedure (E.g. “Previously, the school district was reading aloud emailed public comment at the public meeting.  Moving forward, that practice will change.”).  For each emailed public comment the school board receives prior to the next meeting where procedures change, whoever monitors that public comment email account should respond to the emailer to indicate, “The emailed comment will be forwarded to the school board for them to read and consider and will be a part of the minutes, but will not be read aloud at the meeting unless a specific request is made for the email to be read aloud at the meeting, in order to accommodate a disability.”  Consider, too, putting that same statement on the website where the email address for public comment is made available.

To make this formal transition back to in-person meetings, some board presidents will read this new process aloud and ask for the school board to vote on whether they agree with this process, just to have a record of support from the board (assuming that is the result). Other board presidents will read it at the beginning of the comment section as a statement of the new process, but not putting it up for board vote.  And other boards will simply engage in the new process without making specific notice at the board meeting but ensure that the person monitoring the email still sends that individualized email to respond to each emailed public comment.  The most transparent way that reflects full board support is the first option, a vote, but as long as the citizens making the emailed public comment know of the new process via the individualized response to their email, there is not necessarily a requirement to read the new “emailed public comment” process aloud at the board meeting.  Boards should make the choice that best suits their community.

Remote Board Participation

Recently, the School Law Group at Stock and Leader has received many questions about remote board member attendance moving forward into the 2021-2022 school year. We recognize the concern and prioritization relative to the health and safety of students, staff, school board members, and community members, however, we also recognize the need to continue the business and operation of the school district, which requires as much in-person attendance as possible.

The Pennsylvania School Boards Association (PSBA) policy guide for Board Policy 006.1 (Attendance at Meetings Via Electronic Communications) has been adopted by many school boards to allow for remote participation by school board members due to illness, travel, weather conditions, or other situations that require physical absence from a board meeting. The policy of many school boards contains a provision limiting the number of members permitted to participate remotely, so that a least a quorum would be physically present at all meetings. PSBA states that this provision was intended and recommended as a safeguard to prevent the overuse of the policy in fulfilling school board member duties and to minimize legal uncertainty. PSBA acknowledges that this provision is a recommendation only:  there is no statute or case law suggesting that more than a quorum cannot participate remotely in meetings.

It may be, that in response to PSBA’s proposed policy, your school district’s policy on Meetings (006/006.1) permits a full remote quorum in an emergency only.  This remains the advice of Stock and Leader’s School Law Practice Group, because the quorum provisions in section 422 of the Public School Code state that “unless a majority is present at any meeting, no business shall be transacted.”  The School Law Practice Group advises this more conservative approach when interpreting this section of statute, and cautions against allowing full remote participation.  Check your board policy and work with your school solicitor in establishing/revising policies and practices that will meet the needs of individual school board members, the school district, and the overall school community in conducting the business of the board.

As always, the School Law Group at Stock and Leader monitors all changes relative to the post-pandemic education sphere. Members of our group are ready to discuss concerns, answer questions, and provide counsel on any of your school district’s issues and board policies.

Subscribe to our Newsletters

Get the latest news and information from the trusted professionals at Stock and Leader delivered straight to your inbox. Select areas of interest below.

Select your area of interest:
  • Select your role:
  • Select your role:
  • Select your role:
  • Select your role:

©2021 Stock and Leader, Attorneys-at-Law.
All Rights Reserved.

Stock and Leader strives to maintain an accessible website compliant with the Americans with Disabilities Act.