Executive Order 183 Permits Resumption of Live Board Meetings, With Limitations

On Friday, September 25, Governor Whitmer issued Executive Order 183, an update to her “Safe Start” orders for re-opening Michigan’s economy. EO 183 was heavily reported in the media because it authorized the re-opening of movie theatres, bowling alleys, and other similar venues where large crowds might gather. For schools, EO 183 has particular importance: for the first time since the economy shut down in March, live Board of Education meetings are permitted, with limitations.

Effective Friday, October 9, 2020, indoor social gatherings or organized events containing more than 10 but not more than 500 people are permitted in most of the State. (Regions 6 and 8 in the northern lower peninsula and upper peninsula remain subject to less limiting rules). The greater capacities are permitted so long as the organizers – meaning the districts or schools – ensure that:

1. People who do not live in the same household maintain six feet of distance from one another; 
2. Individuals at the event wear a mask or other facial covering; and
3. Attendance is limited: where the event takes place in a venue with fixed seating, attendance is limited to 20% of seating capacity; or otherwise, such as in a library, classroom, or other area where movable furniture is utilized, attendance is limited to no more than 20 people per 1,000 square feet in each room.

As a result, a district or school which holds its board meetings in an auditorium that has 500 seats, for example, may have a capacity for a Board meeting of 100 persons. The capacity maximum would include all attendees, including Board members and other school officials, in addition to members of the public. Although most districts’ board meetings generally do not draw that many people, it might be wise for the first meeting or two, particularly before the upcoming elections, to either continue live streaming meetings and/or to have an overflow room available where excess people could be located. In our view, public comment would not need to be required for those live-streaming, since public comment may be made at the live meeting (although if the meeting is at capacity and a person in an overflow room wants to make a public comment, someone, such as a school official, may have to exit to allow that person to come in to comment).

For those districts that cannot or choose not to return to live meetings at this time, keep in mind that remote meetings under the format that has become popular during the COVID pandemic remain permissible. The most recent Executive Order permitting remote meetings, EO 154, provides that the order remains in effect until 28 days after the termination of the Governor’s declaration of a state of emergency, so remote meetings remain permissible indefinitely. 

If you have questions about this or other Open Meetings Act-related issues, please contact Mark McInerney at mmcinerney@clarkhill.com or (313) 965-8383, or another member of Clark Hill’s Education Law group.