A number of our clients have inquired as to the appropriateness of holding board meetings telephonically and by other electronic means during this period of school closure. The inquiry raises several important issues for consideration.
First, as it relates to the physical gathering of board members and members of the public, the Nonprofit Corporation Law states: “Except as otherwise provided in the bylaws, one or more persons may participate in a meeting of the incorporators, the board of directors or another body of a nonprofit corporation by means of conference telephone or other electronic technology by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this section shall constitute presence in person at the meeting.” 15 Pa. C.S. § 5708. You should confirm that your school’s bylaws do not prohibit such means of participation. Our firm regularly includes language in bylaws we draft that expressly provides for means of participation.
Second, as it relates to the Sunshine Act’s public notice requirement, there exists an exception when necessary to hold an emergency meeting. See 65 Pa. C.S. § 709. An emergency meeting is defined in the Sunshine Act as a “meeting called for the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property.” 65 Pa. C.S. § 703. While current circumstances plainly raise issues involving a clear and present danger to life, it is important that schools not rely on this fact simply to circumvent the Sunshine Act’s notice requirements. An emergency meeting must be called for the purpose of dealing with the emergency and not just because there is an emergency. If you or your board require additional clarification regarding this nuance, please contact our office to discuss further.
Finally, as it relates to appropriate content for executive sessions, the legislature amended the Sunshine Act to allow for an executive session for a board “to discuss, plan or review matters and records that are deemed necessary for emergency preparedness, protection of public safety and security of all property in a manner that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection.” 65 Pa. C.S. § 708(a)(7). This may or may not apply to discussion of the current public health crisis given the requirement that the discussion, if disclosed, be reasonably likely to jeopardize or threaten public safety or preparedness or public protection. This too is requires a case-by-case analysis. It is important to note, however, that even if the exception were not to apply, other exceptions may.
Again, we recommend you contact our office to discuss your school’s particular circumstances so as to ensure compliance with the Sunshine Act and other applicable laws and the school’s charter.