Open Meetings, Public’s Rights and COVID-19
COLUMBUS, Ohio – Since the Stay at Home Order from Ohio Health Department Director Dr. Amy Acton, one of the things that has changed is the way local government is functioning concerning meetings. There have been many questions concerning what is appropriate and still in compliance with Ohio Sunshine Laws which helps to ensure the rights of the press and the people to have an open government.
On March 25, 2020, the Ohio General Assembly passed and sent to Governor Mike DeWine Amended, Substitute House Bill 197. Included in the lengthy enactment, in a portion of the Bill which appears at Pages 328 and 329, are provisions which relate to the conduct of public meetings and hearings during the period of the Covid 19 emergency. By the terms of the Bill, these changes are to be in effect during the period of the emergency which was declared by Governor DeWine under Executive Order 2020-01D issued on March 9, 2020, but not beyond December 1, 2020, if the period of the emergency extends beyond that date. On March 27, Governor DeWine signed the Bill into law. The Bill had been declared by the General Assembly to be an emergency measure, and, upon its signing, it’s provisions immediately became law.
The enactment provides that, during its effective period, members of public bodies may hold and attend meetings, and conduct hearings by means of teleconference, video conference, or any other similar electronic technology. The term “hearing” is defined as any hearing under R.C. 109.01, or any other hearing at which a person may present written or oral testimony on a matter before the public body. “Public body” and “meeting” have the same respective meanings as are set out in R.C. 121.22.
Members of public bodies are permitted to attend such meetings by means of the electronic technology which is permitted under the provisions and which the public body chooses to use. Notwithstanding the requirements of R.C. 121.22(C), members attending in this manner are to be considered present, and shall be counted toward the presence of a quorum and permitted to vote on matters coming before the public body during its session. Any resolution, rule, or other formal action of the body taken or adopted by the public body during such a session is to have the same effect as if it had been taken or adopted in an open meeting or hearing.
The public body is required to give notice of the meeting at least twenty-four hours before its occurrence to the media that have requested notification of the meetings of the public body, and to parties required to be notified of the hearing. Notice is to be completed by reasonable methods by which any person may determine the time, location, and manner of conduct of the meeting or hearing. In an emergency situation, the public body is to give similar notices which must include not only time, place, and manner of conduct, but also the purpose of the meeting or hearing. As is required by existing law, notices of emergency meetings should be given as soon as it is practicable to do so.
The public body is required to provide the public access to the discussions and deliberations of the body which are conducted by means of electronic technology to the extent that the public would have been able to attend an in-person meeting or hearing of the body, and commensurate with the method which the public body is utilizing. Examples of the methods of affording public access which are cited in the Bill include live-streaming by means of the internet; local radio, television, cable, or public access channels, call-in information incident to a teleconference, and any other similar electronic means. The public body is to ensure that the public is able to hear the discussions of each member of the public body, whether that member is participating in person or electronically. When it is conducting a public hearing, the public body also must utilize electronic equipment and technology which is widely available to the general public and which permits the public to converse with witnesses, and to receive documentary testimony and physical evidence.
Since the initial distribution of the summary, the Ohio Attorney General’s Office has received many questions from local governmental officials and the general public regarding the temporary changes. Below are answers to frequently asked questions from the Ohio Attorney General’s Office.
1. Do the changes to Ohio’s Open Meetings Act prevent a local public body from continuing to hold all or some of its public meetings or public hearings on an in-person basis and in the presence of the public?
There is nothing in the legislation preventing a local public body from continuing to conduct all or some of its public meetings or public hearings with its members present in-person or to hold such gatherings in an open setting permitting members of the public to be physically present. It is important to note that, except where the bill made specific changes to the requirements of the law, the provisions of Ohio Revised Code 121.22 related to open meetings – including those regarding notice, the taking and maintenance of minutes, and limitations on executive sessions – continue to apply.
But the emergency declarations issued by Gov. Mike DeWine and the Ohio Department of Health do impose limitations on public gatherings and the number of people permitted to congregate. These declarations have been modified occasionally in substantive respects relevant to public meetings, and additional changes may be forthcoming. In addition, public health officials have provided guidance on maintaining “social distancing” during this pandemic.
As a result, before holding an in-person meeting, a public body should give due consideration to the limitations and guidance and appropriate concern for the health and welfare of the members of the body and their constituents.
2. Can a public body conduct a public meeting or hearing using audio teleconferencing or must video conferencing be used?
The bill specifically permits a public body to conduct meetings via teleconference, video conference or any similar electronic technology. Thus, a public body may choose to use audio-only teleconferencing. Of course, the law requires that access to any such meetings be afforded through some mechanism that makes it generally available, including teleconferencing; live streaming via the internet; or broadcasting on local radio, cable television or public-access stations. When using audio-only teleconferencing, the public body should ensure that speakers are identified and individual votes announced verbally so that listeners can determine what each member is saying and how he/she is voting.
3. What type of notice should be given if a public body plans to hold a virtual meeting?
Absent an emergency situation, the law requires that notice of a virtual meeting be provided to the public and to media outlets that have requested notice of the body’s meetings at least 24 hours before the meeting. The notice must include the technique being used to conduct the meeting and the method of access available to the media and the public. A public body is encouraged to provide notice in the same way that it has provided notice in the past regarding additions to the content of the notice and its recipients.
4. If a public body can’t arrange to have a meeting as scheduled or a quorum is unavailable, may a public meeting be postponed or canceled?
Nothing in the law prohibits a public body from postponing or canceling a public meeting for any reason. Notice of the cancellation or postponement should be given as soon as possible to to the media and members of the public who have requested notice of the body’s meetings, and through any other means of notice that the public body commonly uses. As long as a public body has no pressing business requiring it to meet as scheduled, a meeting may be postponed or canceled.
5. Is there a difference in how a public body must afford public access to a virtual “hearing” versus a virtual “meeting”?
Yes. The law defines a meeting of a public body as a prearranged gathering of a majority of the members of the body for discussing and deliberating upon public business. A public hearing is a specific type of gathering of the body, one designed to yield public input on a matter of interest to the general constituency or to particular stakeholders. A number of provisions in the Ohio Revised Code require a variety of public bodies to hold public hearings on specific matters. Under the bill, both public meetings and public hearings may be conducted virtually. In the case of virtual public meetings, the public body need only provide public access to the content of the meeting. Regarding public hearings required by law, the public body must provide interested parties access to the proceedings as well as a mechanism to provide input, question witnesses and view evidentiary material. Public hearings, therefore, require an interactive function.
6. What about providing for public speech or some other kind of public input in relation to a virtual meeting?
Nothing in Ohio law affords the public the right to make comments, pose questions or otherwise speak at a meeting of a public body. Generally, most public bodies do give those attending in-person the opportunity to speak, usually under reasonable, defined and uniform limitations. A public body may arrange for such input at a virtual meeting through the electronic technology being used by the body, but it is not required to do so. Clearly, taking steps to allow input is commendable, as it serves to maintain an additional facet of normalcy at meetings of the public body.
7. May a public body hold an executive session as part of a virtual meeting?
Yes. Nothing has changed regarding the executive sessions that public bodies may hold or the way that a public body enters into executive session.
A public body must convene in open session and, after a motion and a second, vote by roll call to go into an executive session to consider one or more of the permitted topics set out in R.C. 121.22. If a personnel matter is at issue, the section requires more specific identification of the matter. Also, an attorney for the body must participate in any executive session convened for the purpose of discussing pending or imminent litigation. At the conclusion of the executive session, the public body must return to open session before taking any action or vote or before adjourning. These standards apply to both virtual and in-person meetings.
As in all matters related to virtual meetings, there will be challenges. It is suggested that a virtual broadcast could be stayed or paused when the public body moves into an executive session, with appropriate notice to viewers or listeners, and that the broadcast be reinitiated as the public body returns to an open session.