On February 24, 2022, the Rhode Island Office of the Attorney General completed an investigation into an Open Meetings Act (“OMA”) complaint filed against the Council on Elementary and Secondary Education (“Council”) and issued a decision finding the Council violated the OMA.
The complaint alleges that the Council violated the OMA at its August 17, 2021 meeting by voting on a COVID-19-related mask mandate without providing proper notice on the agenda. At this meeting the Council voted to “mandate that the Commissioner of Education reject any back-to-school plan submitted by a school committee, unless that plan contains a universal mask mandate policy.” The agenda item from the Council’s open session meeting read as follows:
5. DISCUSSION ITEMS
a. Back to School Plan
In responding to the complaint, the Council asserted that their vote was taken in direct response to comments initiated by the public at the meeting and was “necessary to address an unexpected occurrence that requires immediate action to protect the public.” R.I.G.L § 42-46-6(d).
The OMA requires that all public bodies, including charter schools, provide public notice of all meetings at least forty-eight (48) hours in advance of the meeting. In pertinent part, the notice must include “a statement specifying the nature of the business to be discussed.” R.I.G.L § 42-46-6(b). The OMA does not prohibit a public body from responding to comments initiated by a member of the public during open forum (i.e., public comment). The public body’s response must be for informational purposes only and may not be voted on except where “necessary to address an unexpected occurrence that requires immediate action to protect the public or to refer the matter to an appropriate committee or to another body or official.” R.I.G.L § 42-46-6(d).
In the Decision, the Attorney General held that the above exception did not apply because the mask requirement was not voted upon by the Council “during a properly noticed open forum.” Instead, the Council voted upon the mask requirement during the “Back to School Plan Discussion Item,” not during the Open Forum, which was a separate item on the agenda. Although not discussed in the decision, it is also important to note that even if the Council voted upon the mask requirement during the Open Forum, they would need to show evidence that the vote was necessary to address an “unexpected occurrence,” required “immediate action” and was necessary to “protect the public.”
This decision serves as an important reminder for all school leaders and governing bodies to (1) ensure their agendas provide proper notice to the public of the business to be discussed and (2) refrain from discussing or voting on matters that are not part of the agenda (subject to the limitations set forth above).
As always, we at Barton Gilman are available to review agenda language, as well as attend Board meetings to ensure compliance with the OMA. If there are any questions or concerns regarding this decision and how it may impact your public entity, please contact Matthew R. Plain or your Barton Gilman attorney at 401-273-7171.
