Legal Brief

Safe Travels: Remote Participation in Board Meetings
By V. WAYNE YOUNG/School Administrator, October 2019

A SCHOOL DISTRICT in our state was preparing to vote on a tax levy. The school board was wholly supportive but knew there would be divided opinions in the community.

On the day the board of education planned to formally approve the levy and put it up for public approval, one board member had to be hospitalized with a serious illness. However, he wanted to make it clear to the community that he supported the increased school funding. He participated in the meeting electronically and cast a compelling public vote in support of the levy.

Scheduling Conflicts
School board members, like most involved in public service, carry a combination of careers, families and outside interests and activities beyond their board duties. They sometimes find themselves with schedule conflicts on days of school board meetings. At other times, emergencies arise.

Missing an occasional meeting can be inconsequential, but there are times when an individual’s presence is essential due to subject matter or quorum requirements. And board members have a desire to fulfill their obligations to the public.

The proliferation of web-based technology enabling work to be performed anywhere and at any time provides some welcome relief in this context. But as with most otherwise productive uses of technology, caution remains a watchword. The practice of permitting remote participation by board members in official meetings should be approached with extreme care and judicious practice.

Open Meetings Laws
The most likely source of guidance for remote electronic participation by school board members is the state’s open meetings law (or “sunshine” laws). Many states permit a member to participate and even vote electronically, but the rules vary. In Kentucky, remote participation requires that the board announce the member’s remote participation in the meeting notice; that the member’s location be identified and accessible to the public; that there be functional audio and video at both locations; and that any materials being distributed at the meeting site be available at the remote site.

Some states may have additional requirements, and some may require less. Other states may prohibit remote participation by an elected official. Superintendents and boards need to ensure they have a clear understanding of the law and adhere to the law completely. Noncompliance can quickly result in complex and problematic consequences. Consultation with the board attorney is essential.

Absent any state law on remote participation and voting, boards would be well-advised to develop a policy that addresses it. Commonly used parliamentary procedures have been modernized to allow for remote participation and can serve as a guide.

Just because remote participation is permitted and convenient doesn’t mean it should be used in every circumstance. The use of remote participation should be limited to necessity based on topic, quorum or other compelling need. Excessive employment of this option has the potential to send the wrong message to the community about the board’s view of its work.

If actual participation in the meeting by the board member is not necessary, nothing prohibits the member from remaining engaged in the process by listening to or watching a meeting via phone or computer and even making comments or submitting questions. It is the act of voting that distinguishes between functioning in one’s official capacity versus being an observer. But, again, moderation is advisable.

A Rare Use
Planning ahead for remote participation is always advisable. If a board member can identify a schedule conflict days or weeks in advance, the advisability of and arrangements for remote participation can be addressed most effectively.

Remote participation can be an effective tool to permit the conduct of board business, but it should remain a rare exception.

WAYNE YOUNG, an education lawyer, is the recently retired executive director of the Kentucky Association of School Administrators in Frankfort, Ky.