Social Distancing and the Open Meetings Act, Can They Co-Exist?
We all know what the Ohio Open Meeting Act (OMA) requires. All meetings of any public body are declared to be public meetings open to the public at all times. R.C. 121.22(C). A member of a public body must be present, in person at a meeting open to the public to be considered present or to vote at the meeting and for purposes of determining whether a quorum is present. Id. And, there are no exceptions to the “in person” requirement.
Late last week, Dr. Amy Acton, Director of the Ohio Department of Health, issued an Order targeted at preventing the spread of COVID-19. Dr. Acton’s Order primarily addresses “mass gatherings”, which it defines as “any event that brings together one hundred or more persons in a single room or single space at the same time”. While a contentious zoning meeting may bring out 100 residents, the everyday council meeting rarely draws such a crowd. Dr. Acton’s Order also address the smaller meeting by stating:
Regardless of whether an event or gathering falls within the definition of mass gathering, all persons are urged to maintain social distancing (approximately six feet away from other people) whenever possible.
So, what to do? How can council consider the applicability of the OMA’s “in person” requirement in the context of Dr. Acton’s Order and the rapidly developing information about the spread of COVID-19?
Soon after this Order was released, Attorney General Dave Yost provided guidance to Ohio’s public bodies. According to the Attorney General, “it is reasonable to read the OMA’s ‘in person’ requirement as permitting a member of a public body to appear at a public meeting via teleconference.” Then, the Attorney General took this one step further. He believes “if a member of a public body chooses to appear via teleconference or telephone, it is imperative that all other requirements of the OMA be fulfilled.” “In the event that a member appearing telephonically is cut off, the public body should cease all discussions and deliberations until the member can be reconnected.” Finally, Ohio’s Chief Legal Advisor stated “in the interest of complying with both Dr. Acton’s Order and the OMA a meeting could be made “open” to the public by live-streaming it through the internet or on television. 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.”
While Attorney General Yost cautions cities and villages to stick to handling more routine matters via telephonic means because “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 appears this unique time allows for a relaxed and exceptional interpretation of the OMA.