Residents might have noticed the recent string of public meetings that are not open to the public – in person, at least, whether explicitly or implicitly – and instead streamed on live video.
But the COVID-19 coronavirus pandemic has changed the perspective on what previously might have been considered uncharted territory for the Open Meetings Act, which “requires public bodies in Ohio to conduct all public business in open meetings that the public may attend and observe,” according to ohioattorneygeneral.gov.
Ohio Attorney General Dave Yost on March 13 provided guidance via a letter to school boards, city councils and other local legislative bodies on livestreaming public meetings during the public-health crisis.
“The Ohio Attorney General’s Office has received numerous questions regarding the applicability of Ohio’s Open Meetings Act (OMA) during this time of a COVID-19 declared emergency,” Yost wrote. “Under this very limited fact pattern, there may be a basis for local public bodies to use electronic means to meet and comply with the law.”
Yost’s letter offered guidance and not an official legal position, according to Dave O’Neil, Yost’s senior public-information officer who provided a copy of the attorney general’s letter. Public bodies should consult with their legal counsels, O’Neil said.
“Ohio’s OMA requires public bodies to take official action and conduct all deliberations upon official business in public meetings that are open to the public at all times. (Ohio Revised Code) 121.22,” Yost wrote. “When recently asked, I pointed out that the OMA does not contain an exception to the ‘in-person’ requirement during the time of a declared emergency. R.C. 121.22(C).
“The OMA provides very few exceptions to this requirement.”
Dr. Amy Acton, director of the Ohio Department of Health, on March 12 addressed the spread of the disease and issued an order primarily addressing “mass gatherings,” which are defined as “any event that brings together one hundred or more persons in a single room or single space at the same time,” the letter said.
“It is possible that a meeting that must be public under the OMA qualifies as a ‘mass gathering’ subject to the order,” Yost wrote. “Thus, on its face, the order could prevent a public body from holding a meeting necessary for the continuation of governmental operations. But even if it does not, the order is not so limited such that it only provides guidance as to mass gatherings.”
Although the OMA does not specifically dictate how a meeting is made “open” to the public, in the interest of complying with both Acton’s order and the OMA, a meeting could be made “open” to the public by livestreaming it through the internet or on television, according to Yost’s letter.
Yost wrote that local officials may meet in a telephone conference or virtual call but that the public must be able to hear all discussions and deliberations, and if any officials’ connection is dropped, the meeting must be suspended until it is restored.
“If a public body gives the public access to a meeting electronically and the members of the body appear telephonically, the body must still ensure that the public is able to hear the discussions and deliberations of all of the members, even those who are present via telephonic means,” Yost wrote. “Finally, all other requirements of the OMA will apply, including those that govern notice, executive session and the taking of meeting minutes.”
A quorum also must be present, the letter said.
“As a final word of unsolicited, non-legal advice: Please note that the procedure outlined in this letter is meant to address the unique situation that all of Ohio is dealing with,” Yost wrote. “Now is not the time to rely on this guidance in order to enact legislation unrelated to the instant emergency that is better reserved for the normal operations of government (e.g. to pass a new tax or enact a new regulatory scheme). It is also important that county prosecutors, local law directors and city attorneys independently research whether there is any case law in their respective jurisdiction that would specifically prohibit the procedure that I have outlined here. This office does not represent local governments, and this letter is offered as guidance regarding our reading of the law.”
Mark Weaver, a central Ohio attorney and expert on open meetings and public records who helped write eight editions of Ohio’s Sunshine Laws manual, said “reasonable steps” by a local government were key.
“Under the Open Meetings Act, the public must be allowed to attend public meetings in some form, typically in person,” Weaver said. “However, the Open Meetings Act has to be interpreted in accordance with the orders of the state health director, who is also acting under state law when she prohibits gatherings of a certain size.
“If a local government is taking reasonable steps to allow the public to see what transpires – by video, Facebook Live, etc. – then I expect a judge who might have to consider the case would find that acceptable.”
Many local governments have been using livestreaming for some time to provide options to residents.
Worthington City Council, for example, has been livestreaming its meetings for 1 1/2 years, city spokesperson Anne Brown said.
“Our meetings have been open all along,” she said. “This just gives people an opportunity to be informed and hear about council decisions and discussions even if they’re not in council chambers.”
The city archives its livestreams on its website at worthington.org/1885/Live-Stream-Video-Archives.
Logistics have varied from community to community, but one significant aspect is how public feedback from residents works if a meeting is limited to remote access or a livestream.
For example, in Hilliard, residents were invited to watch the March 16 Hilliard City Council meeting being streamed live from the city’s website. City leaders said public comments and questions during the meeting could be emailed to email@example.com.
Meanwhile, state Rep. Lisa Sobecki (D-Toledo) on March 16 filed House Bill 557 to allow public bodies to meet and conduct business remotely during a state of emergency.
HB 557 would allow public bodies to meet remotely only if the governor has declared a state of emergency, and it would not allow them to otherwise disregard Ohio’s Sunshine Laws.
It also contains an emergency clause that the bill would go into effect immediately if signed by the governor.
“In light of all the positive action that state and local leaders are doing to respond to the coronavirus COVID-19 outbreak, this bill allows public bodies to meet and conduct business remotely in order to further slow the spread of pandemics,” Sobecki said in a prepared statement. “During this extraordinary crisis we are facing due to COVID-19, it is important that public officials have the option to practice prudent behavior by limiting in-person interactions in order to protect their own health, and the health of their communities, in which they have an insignificant public presence.”
ThisWeek reporter Kevin Corvo contributed to this story.