Reminder Regarding Virtual Board Meetings

As we experience yet another wave of concern regarding COVID-19, coupled with the concurrent flu and cold seasons in Wisconsin, some governmental bodies have again chosen to meet virtually in certain circumstances. Given this reality, a quick reminder of the Wisconsin Open Meetings law and the guidance from Wisconsin Attorney General on the issue is a worthwhile exercise.

Attorney General Guidance

The Wisconsin Attorney General created a webpage that compiles the office’s guidance on open meeting compliance during the COVID-19 pandemic. No new guidance has been posted to that webpage since March 15, 2021. However, discussions with the Department of Justice’s Office of Open Government confirm that they continue to endorse the guidance contained on this webpage.

The Attorney General describes the expectations for boards relative to compliance with the Open Meetings law both in terms of what is required and what are viewed as preferred practices to “advance the open meetings law’s purpose of ensuring government openness and transparency”. See WI Attorney General Advisory, March 15, 2021. Importantly, the requirements for proper conduct of meetings does not change depending on whether it is a regular board meeting or a special meeting.

What the Open Meeting Law Requires

Wisconsin’s Open Meetings law (Wis. Stat. § 19.81, et. seq.) requires that governmental bodies, such as school boards, city councils, town boards, etc., provide the public with advance notice of a meeting that identifies the date, time, location, and subject matters to be covered during the meeting. Wis. Stat. § 19.84. Likewise, all meetings are to be held in “open session”, which requires that the meeting be “reasonably accessible to members of the public”. Wis. Stat. § 19.82(3). It is this last piece that has taken some adjustment in the context of virtual board meetings. Nonetheless, the requirement is unchanged – the public must have “reasonable access” to the meeting. Succinctly, the Attorney General provided as follows:

When an open meeting is held by teleconference or video conference, the public must have a means of monitoring the meeting. DOJ concludes that, under the present circumstances, a governmental body will typically be able to meet this obligation by providing the public with information (in accordance with notice requirements) for joining the meeting remotely, even if there is no central location at which the public can convene for the meeting. A governmental body conducting a meeting remotely should be mindful of the possibility that it may be particularly burdensome or even infeasible for one or more individuals who would like to observe a meeting to do so remotely—for example, for people without telephone or internet access or who are deaf or hard of hearing—and appropriate accommodations should be made to facilitate reasonable access to the meeting for such individuals.

Therefore, the Attorney General contemplates public access to meetings via teleconference, video conference or both. Additional guidance clarifies too that accessibility may necessitate a video access option if a virtual meeting involves the use of visual aids (i.e., reviewing charts, graphs, or other visual depictions pertinent to the agenda). Otherwise, there is no specific obligation to provide public access through video and audio, just audio, or an option to access either. It is wise to assume within this context; however, that access solely via video would not be sufficient to meet the board’s requirement for public accessibility. As such, if technical issues preclude audio access, it may be prudent to adjourn the meeting in order to facilitate such access.

The Attorney General’s Best Practices and Suggestions

Often, when the Attorney General’s office provides information regarding open meetings, it does so with both the requirements of the law, and suggestions for even greater access and openness. These latter items are not legal requirements, but rather merely suggestions; that is the case with virtual meetings and public access, as well. The Attorney General suggests a number of items that improve access, but are not required:

1. Provide an audio only option for meetings that are being livestreamed on video to account for those with inadequate internet to accommodate livestreaming (Note that providing audio only access to meetings generally is not impermissible, unless some aspect of that meeting requires video to assure public accessibility, again, in the event of visual aids or the like that cannot be accessed in other ways).
2. Post a recording of the meeting shortly after the meeting. Note that if a meeting is recorded, the governmental entity will need to account for the public record aspect of that recording.
3. Consider continuing to provide remote access to meetings held in person as a secondary option for those who may still be uncomfortable attending in-person

Finally, it is important to note that whether meeting virtually or in-person, boards are required to make board action accessible by assuring that all “motions and roll call votes of each meeting of a governmental body [be] recorded, preserved and open to public inspection”. Wis. Stat. § 19.88(3). Likewise, boards often have specific requirements applicable to the type of entity they govern, for example, a school board must publish the “proceedings of a school board meeting” within 45 days, to include the “substance of every official action taken….and a statement of receipts and expenditures in the aggregate”. Wis. Stat. § 120.11(4); Wis. Stat. § 120.43(4).

Conclusion

While we all anxiously await the time when the pandemic and its effects on all aspects of life are but a memory, for the time being, it is important to continuously examine how regular operations are handled in this context. Meetings of governmental bodies that continue to be or are again being held virtually must still comply with the Open Meetings law. In order to facilitate such compliance, local public officials should consult with the significant guidance from Wisconsin’s Attorney General on what is required, as well as what are additional practices that may serve to increase accessibility if otherwise appropriate.