Education Law Notes  

In my last column, The FOIA and the Pandemic: New (temporary?) Provisions on “Remote” and “Hybrid” Meetings for Public Agencies, I provided a summary of the “budget implementer” bill that amended Connecticut’s Freedom of Information Act (FOIA) so as to preserve elements of the pandemic-era Executive Orders concerning “remote” and “hybrid” meetings through April 30, 2022.  Specifically, pursuant to the budget implementer a public agency such as a school board can continue to hold meetings through 1) electronic equipment only (i.e., “remote meetings”) or 2) remote participation in conjunction with an in-person meeting (i.e., “hybrid meetings”).  Nevertheless, certain meetings-related issues have continuously occurred, so this may be a good time to address them even as we have an eye on the future to a more permanent fix (not to mention the end of the pandemic).  

Are we required to have a remote or hybrid meeting?  No.  A board could choose to have all of its meetings in-person.  In that context, all of the elements of the “old” or “normal” FOIA would remain in effect, but (with one notable exception) the board need not worry about the budget implementer bill’s various requirements for remote and hybrid meetings. If you have an in-person meeting, you are NOT required to provide live/real-time electronic public access to your meetings. Rather, you simply have to make sure that your meetings are in facilities that can accommodate and allow for the public to attend, consistent with any public health protocols.  Regarding that exception …  

So what about board members who do not want to attend in-person? Even if you have an in-person meeting, the new/temporary FOIA provisions mandate that board members must be provided with the opportunity to participate in meetings remotely.  In these circumstances, the fact that a board member is participating remotely does not convert the in-person meeting into a remote meeting that is now otherwise subject to the various temporary FOIA “remote meetings” requirements. 

If we have remote meetings, are we required to have video? Not per se. Under the (temporarily) revised FOIA, boards holding remote meetings are required to use technology that “facilitates real-time public access to meetings,” such as “telephonic, video or other conferencing platforms.”  By its very wording, a board could go “old school” and just use old-fashioned audio/telephonic conferencing as the method for a remote meeting, provided it allows for real time access to the meeting.    

If you choose to have in-person meetings, must attendees wear masks?  This is not strictly a FOIA issue but is still worth addressing.  The answer is “it depends” based upon the location of the meeting.  Obviously, if the town in which the meeting is taking place has a mask requirement, masks will be required by all (board members and the public).  Current (binding) Department of Public Health (“DPH”) guidance requires the wearing of masks regardless of vaccination status at PreK-12 public and private school buildings at times when students are present. The DPH guidance then notes as an example of this exception to its binding guidance that fully vaccinated custodians or office staff do not need to wear masks when in a school building on a weekend or after hours when students are not present. 

So what does that mean for your board meeting?  If you are meeting in a school building, and if and only if there are not ANY students present in the building, and if and only if the school district (or the town) does not have a general policy mandating the wearing of masks at all times in its buildings, you could arguably forego requiring masks.  However, that is a lot of “ifs” to deal with, and it would be rare to meet all of these conditions.          

What can we do if persons disregard a mandate to wear masks at our board meeting?  You would obviously have the right to request that the offending person wear a mask.  Things may get dicey if the person then refuses to put a mask on. The FOIA provides that if a meeting is interrupted by any person so as to render the orderly conduct of the meeting unfeasible, and if order cannot be restored by the removal of persons willfully interrupting the meeting, the agency may order the meeting room cleared and continue with its meeting.  In this context, if a person refuses to honor a request to put a mask on so as to comply with a mask mandate, and if you cannot remove that person from the meeting, then under these circumstances, you could remove the meeting from the persons (so to speak) by (for example) having the board members go to an adjacent room to continue the meeting.  While understanding the difficulties in ejecting a non-compliant person (especially where you may not have law enforcement available to remove the person from the meeting), this is a measure of last resort.  In these circumstances, only matters on the agenda may be considered in such a meeting, and “duly accredited” representatives of the press/news media (except those participating in the disruption) must be allowed to attend.  

Please note: this post is adapted from an article written by the author for the December 2021 edition of the CABE Journal.