Just as the medical experts have been saying that the corona virus is an unknown pathogen, the correct or optimal legal path for board business cannot be predicted with complete certainty.

This School Law Bullet does not presume to advise school boards how they conduct their business in light of recent executive orders by the Governor, but to make boards aware of certain legal consideration that may inform their decisions.

Consultation with your school solicitor in implementing procedures that may challenge common practices under Sunshine Law School Code or school board policy is essential to guard against challenges to board actions taken under modified procedures.

Governor Wolf’s Proclamation of Disaster Emergency on March 6, 2020 provided in most relevant part to school board business as follows:

“FURTHER, I hereby authorize the Secretary of the Pennsylvania Department of Education, in his sole discretion, to suspend or waive any provision of law or regulation which the Pennsylvania Department of Education is authorized by law to administer or enforce, for such length of time as may be necessary to respond to this emergency.”

Note that there are laws that impact the conduct of school board business that are not within the Secretary of Education’s authority “to administer or enforce,” most notably the Sunshine Law, and even assuming that the source of his authority extends to the full breadth of the School Code, to date we are aware of no order or directive of the Secretary that directly affects how a school board is to conduct business during the closure of schools.

Virtual Meetings

The question on everyone’s mind is “can we have virtual board meetings” at which no one would be physically present. PSBA guidance on this issue is a little unclear, as the law is a little unclear. The uncertainty resides in what constitutes a “quorum” for transacting business.

The Pennsylvania Supreme Court case of BABAC v. PA Milk Marketing Board*  has long justified remote participant in public meetings as compliant with the Sunshine Law so long as the electronic connection allows the remote participation to fully hear the proceedings and for the remote member to be heard by all present at the meeting. Although the BABAC decision also held that a quorum of the Milk Marketing Board could be had even by including a member not physically present, the Court relied on the Sunshine Law’s definition of a meeting as “any pre-arranged gathering of an agency which is attended or participated in by a quorum of the members…”

The Court reasoned that in order to give meaning to the phrase “or participated in,” it was compelled to conclude that a member participating by telephone who met the requirements of hearing all and being heard by all could be counted in determining a quorum. If the BABAC case were our only guidance, there would be no restriction on conducting fully virtual school board meetings.

Cross reference section 422 of the School Code:

“A majority of the members of a board of school directors shall be a quorum. If less than the majority is present at any meeting, no business shall be transacted at such meeting, but the members present may adjourn to some stated time…”

Section 422 makes no mention of those “participating in” a meeting, providing quite plainly that in order to conduct business, a majority of members must be “present” at the meeting.

Without reciting the various principles of statutory interpretation that might apply to a correct legal interpretation of whether the rule in the BABAC case applies to school boards, it is evident that a substantial argument can be made that for school boards, while members not physically present at a school board meeting can vote without violating the Sunshine Law, they may not be counted for the purposes of a quorum. Unfortunately, we could locate no Pennsylvania case that decides the quorum question for school boards. The intent of the SLB is not to make the case that the BABAC case would have been decided differently if a school board and a not a three-member Milk Marketing Board were involved.

School boards, however, need to be aware that they cannot simply move to virtual meetings with impunity. A violation of the School Code’s apparent requirement of a physical presence for a quorum could create major havoc and liability for the district on issues such as issuing tax-free debt, setting tax millage and adopting a budget, approving labor contracts, terminating employees (especially professional employees) along with any manner of board official action which might be subject to legal challenge.

Executive Sessions

There is nothing in the law that prevents a board from holding a completely virtual executive session. All the same rules apply. However, the board may consider adopting guidelines to ensure that the executive session remains confidential.

How should school boards balance the uncertainty of the quorum against the exigencies that the COVID-19 pandemic, school closures and social distancing?

Here are some suggestions for consideration:

• • If your school board meeting policy specifically calls for a quorum that is physically present, amend the policy or suspend the rules as necessary,
  • Arrange for the ability to stream your meetings and for the public to make comments through a platform such as Zoom.
  • Advertise the availability of technology that allows the public full participation in the meeting without the need to physically attend.
  • Encourage the public to participate virtually while the pandemic continues.
  • Do not tell the public that they may not attend a public meeting. The Sunshine Law has not been suspended. Rather, set an appropriate occupancy limit on board rooms and arrange to limit seating so recommended distancing can be enforced.
  • Obtain an opinion from your solicitor that would permit member participation remotely to be counted for the purposes of a quorum.
  • Do not hold meetings with absolutely no board members present, even if you can only rally the board president, board secretary and superintendent.
  • • Do not vote to issue debt without five board members physically present.
  • Tread carefully and with the advice of counsel before voting on sensitive issues such as the budget, the termination of employees, approval of collective bargaining agreements, or any other business to which a motivated opposition might launch a legal challenge.

Bottom Line for Schools

In these unusual circumstances, it is natural for boards to want to apply the advice of our officials to innovate in their meeting protocols to practice social distancing, the fundamental strategy to fight the pandemic.

At the same time the parliamentary prophylactic of virtual meetings is being tested to avoid human contamination, Boards need to pay some heed to laws that never anticipated the current crisis and will likely be judged when the immediacy of the crisis is long past.

If you have a question, contact your legal counsel or one of the education attorneys at KingSpry.

This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.