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Illinois School Board Journal - ARCHIVES
March/April, 2007

Remote communication's easy, but heed restrictions

Melinda Selbee, IASB general counsel, answers the question for this issue.

Question: May school board members participate in a board meeting via audio or video conferencing and may they use e-mail to communicate with each other?

Answer: Technology makes it easy to communicate remotely. But before being tempted to use remote communication for board business, school board members should consider the restrictions imposed by the Open Meetings Act. These restrictions are consistent with the public policy supporting the Act, that is, "to ensure that the actions of public bodies [are] taken openly and that their deliberations [are] conducted openly." (105 ILCS 120/1)

With some exceptions, the Open Meetings Act requires that a school board conduct its deliberations and business during meetings that the public may attend. A meeting means "any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business." (5 ILCS 120/1.02 as amended by P.A. 94-1058, effective January 1, 2007) The Act goes on to significantly limit when video or audio conferencing may be used.

The Act allows a board member to participate in a meeting remotely only if four requirements are met.

1) A quorum must be physically present at the meeting. The Act requires that a quorum be present at all board meetings. This means that four individuals on a seven member board must be physically present at all board meetings regardless of those participating remotely.

2) The board must have adopted "rules" for video or audio participation. The rules, typically contained in a policy, must conform to the restrictions in the Act and may provide additional limitations. The PRESS sample policy, School Board Meeting Procedure, includes a section on "Quorum and Participation by Audio or Video Means."

3) The reason the board member wants to participate remotely must be permissible. The reasons justifying a board member's need to participate remotely are limited to: (a) personal illness or disability, (b) employment or district business, or (c) a family or other emergency. The statute does not include a requirement for documentation or certification of the reason.

4) A board member must give notice to the recording secretary or clerk at least 24 hours before the meeting unless advance notice is impracticable. The statute does not contemplate someone either "approving" or "denying" a request, only that the request be accommodated if the notification is provided.

While not specified in statute, accommodating a request requires that appropriate equipment be available in the board meeting area. In a case arising before the Act that addressed telephone conference calls, an Illinois appellate court upheld their use finding that the accessibility of the public was satisfied by broadcasting the call over a speakerphone. (Freedom Oil Co. v. Illinois Pollution Control Board, 655 N.E.2d 1184 [Ill.App. 4 Dist.,1995]). A board should consider ways to enable a board member to hear, be heard and effectively join the meeting when participating remotely.

While the Act does not specifically prohibit meetings by e-mail, its provisions, taken as a whole, do exactly that. The definition of a "meeting" includes gathering by "electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication of a majority of a quorum of members of a public body held for the purpose of discussing public business."

A meeting occurs, therefore, when a majority of a quorum discusses board business using e-mail. Such a meeting will violate the Act's requirement that meetings be open to the public. This means that if three or more board members discuss district business using e-mail, they violate the Act.

Not all electronic interactive communication among board members is prohibited. For example, two board members on a seven person board may use e-mail to discuss board business — the two members would not constitute a majority of a quorum. Board members may also use e-mail to communicate with each other on non-public business, such as social invitations and information.

Superintendents or board members may send each other e-mail messages that do not involve deliberation, debate or decision-making. E-mail containing agenda suggestions, meeting schedules or information supporting an agenda item are acceptable, provided no discussion of the item ensues.

The Act uses the term "contemporaneous" to designate when an interactive communication among members of a public body is considered a meeting. However, board members should not expect that their serial e-mail discussions will survive scrutiny simply because they were not sitting at their computers at the same time. "Contemporaneous" does not only mean simultaneous, but also "during the same period of time." A good rule of thumb is to consider string or serial e-mail to violate the Act when they function as a meeting. The actual factual context surrounding the e-mail will determine whether they violate the Act.

The PRESS sample policy, Communications To and From the Board, contains a section addressing e-mail use by board members. Another resource is "School Board Meetings Requirements of the Illinois Open Meetings Act," October 2006, page 11. This booklet is available on our Web site at http://iasb.com/files/schboardmeetings.pdf.

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