Virtual Meetings and H.B. 404 – What Boards Need to Know

Recently passed legislation (HB 404) has generated many questions related to the continuing authority to hold virtual board meetings. While HB 404 extends the period to hold virtual board meetings, that legislation has not been signed into law yet, creating tension and uncertainty for boards faced with expiring statutory authority to hold virtual meetings (expires after December 1st). Assuming the legislation is signed into law by the Governor, boards need to review their bylaws, policies, and resolutions to determine whether they need to be updated or modified to reflect HB 404’s authority for holding virtual meetings.

HB 404 Extends the Deadline for Holding Virtual Meetings

On November 19, 2020, the General Assembly passed HB 404, which will require the Governor’s signature to become law. Under HB 404, boards of education may hold virtual meetings until July 1, 2021. HB 404 amends uncodified law contained in HB 197, which allowed virtual meetings starting in March 2020, but “not beyond” December 1, 2020. Virtual meetings held under HB 404’s authority still will be subject to the same requirements as virtual meetings under HB 197.

Boards are reminded that although amended HB 197 will continue to permit virtual meetings, each board’s local authority to hold virtual meetings may be limited or prohibited by local board bylaws and policies. Additionally, if any boards adopted a policy or resolution temporarily permitting virtual meetings pursuant to HB 197, then those boards will need to review whether that policy or resolution needs to be re-adopted with modified language.

Potential Limbo Period Ahead

Remember that HB 404 does not become law unless and until the Governor signs the bill into law. While there is no indication that Governor DeWine will veto HB 404, it is possible that HB 404 will not be signed immediately—or will not be signed before boards plan their early December meetings. Such a delay could call into question the authority of a board to hold a virtual meeting in that temporary “limbo” period:

If the Governor signs HB 404 prior to December 1, 2020, boards can continue to hold virtual meetings provided that virtual meetings are not prohibited by local policies or bylaws.
If the Governor signs HB 404 after December 1, 2020, then there will be a gap in time during which meetings may not be held virtually.

This period becomes especially difficult to plan given the upcoming Thanksgiving Holiday when many school districts shut down early in the week.

In-Person Meetings Not Prohibited by Latest Order

While HB 404 extends the deadline for conducting virtual meetings, remember that it does not prohibit in-person meetings. We have received many questions regarding whether the Department of Health’s Order Limiting Mass Gatherings (issued November 15, 2020), prohibits boards from holding meetings in person. It does not.

While the Order limits mass gatherings (i.e., gatherings of 10 or more people), the Order expressly does not apply to “governmental meetings, which includes meetings that are required to be open to the public pursuant to R.C. 121.22.” As this language applies to boards of education, the Order does not impact board meetings.

This means that a board may hold a meeting in person—and allow the public to attend—without violating the Order’s rules related to the number of people attending. Boards will need to observe social distancing, mask requirements, and other mandates if meetings are held in person. Additionally, boards should review whether their meetings are subject to additional restrictions established by their local Board of Health.

Next Steps

Given the unique timing issues related to HB 404, as well as the severe consequences of holding an improper meeting, Boards need to plan carefully and should do the following:

Review whether board bylaws, policy, or resolutions need to be revised to permit virtual meetings beyond December 1, 2020, if and when HB 404 becomes law;
For meetings scheduled next week (November 30th – December 4th), monitor whether the Governor signs HB 404 into law to determine if a virtual meeting can be held after December 1, 2020;
Consider rescheduling December meetings to avoid issues if the Governor does not sign HB 404 until after December 1, 2020;
For Boards that will hold meetings in-person only, review quorum requirements, voting requirements for resolutions, and deadlines because a board member’s unexpected quarantine or illness may force a Board to reschedule a meeting or hold a virtual meeting (if permitted); and,
Assuming HB 404 becomes law, Boards may need to review and revise resolutions to hold virtual meetings.

We will provide an update when Governor DeWine signs HB 404 into law, including details on additional changes made by HB 404 impacting school boards. If you have additional questions regarding your Board’s authority to conduct meetings virtually, you should contact Board counsel.