20 March 2020

Governor Whitmer Issues Executive Order To Allow For Remote Board Meetings

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

Despite COVID-19, many public boards still have important business to conduct, including making significant contract, policy and personnel decisions.  Safety concerns as well as limitations placed on public gatherings, however, have made it extremely difficult to hold public board meetings that comply with the Open Meetings Act.  Fortunately, March 18, 2020, Governor Whitmer issued an Executive Order that will enable public boards to hold meetings by telephonic or video conferencing as long as appropriate steps are taken to ensure that all members of the general public can fully participate.

Under the Governor’s Executive Order, which is effective through April 15, 2020, here is what public boards need to do to hold lawful, remote board meetings:

  • Draft a meeting notice that explains that the meeting will be held electronically. The notice should also explain:
    • Why the public body is meeting electronically;
    • Detailed procedures for how the public may participate in the meeting electronically, including a telephone number, internet address, or both;
    • Procedures for how the general public may contact members of the public body to provide input or ask questions on any business that will come before the public body at the meeting; and
    • Procedures for how persons with disabilities will be able to participate in the meeting.
  • If the public body has an “official internet presence,” it must post advance notice of the meeting on its homepage. Alternatively, the notice may be posted on a separate webpage dedicated to public notices as long as it is accessible through a “prominent and conspicuous link” on the homepage and the link “clearly describes the separate webpage’s purpose for public notification of non-regularly scheduled or electronic public meetings.”
  • Set up a telephonic or video conference that permits two-way communication between members of the public body and members of the general public who are participating. The public body also may use technology to facilitate typed public comments that may be shared during the meeting.
  • During the remote board meeting, the public body must:
    • Ensure that the general public can fully participate, including through public comment. Pre-registration cannot be required.  Otherwise lawful closed session, however, is permitted.
    • Allow members of the public to record the meeting, consistent with reasonable rules to minimize disruption. Prior approval to record the meeting may not be required.
    • Members of the public body should vote by roll call to avoid any questions about how each member of the public body voted.
    • Members of the public body must refrain from emailing, texting, messaging or otherwise communicating with one another in a manner that would prevent the public from hearing the discussion.

Broadly speaking, other requirements of the Open Meeting Act continue to apply.

While making it easier for school boards to hold public meetings remotely, the Governor’s Executive Order also suspended the requirement in the Revised School Code that school boards hold meetings at least once per month.