Preliminary COVID-19 Guidance on Corporate/Board Governance Issues

Preliminary COVID-19 Guidance on Corporate/Board Governance Issues

By March 16, 2020 News No Comments

To our clients:

This email blast is this the second of three HLERK blasts addressing COVID-19. Each blast answers the most frequently asked questions from you, as well as new questions that have arisen over the weekend.

This second blast addresses questions involving the corporate and the board governance areas. Please note that our answers are based on the latest orders and guidance from the Governor, ISBE, and the CDC. If you have questions or are unclear about anything, please call us. You can reach us 24/7.

How do we cancel or reschedule a board meeting?

The law doesn’t state how to cancel a Board or committee meeting, but districts should provide a notice of cancellation as soon as practicable on the District’s website and in all the usual places where meeting notices/agendas are posted, as well as to any media that receive meeting notices/agendas. To reschedule a meeting, the Open Meetings Act (“OMA”) typically requires posting a notice/agenda at least 48 hours in advance of the rescheduled meeting in all the usual places where notices/agendas are posted, as well as to any media that receive meeting notices. Check your Board policies (for example, PRESS Policy 2:200 and 2:220) for more details on Board meeting protocols.

How do we call an emergency or special meeting?

OMA allows a Board to meet with less than 48 hours’ notice for a “bona fide emergency” by posting a notice/agenda as soon as practicable on the website and in all the usual places where meeting notices/agendas are posted, as well as sending notice to any media that receive meeting notices/agendas. Contact legal counsel to determine if your situation qualifies as a “bona fide emergency.” An emergency or special meeting may be called by the Board President or any three (3) Board members. At the emergency or special meeting, only topics listed on the agenda can be discussed.

Can board members attend meetings remotely?

Yes, but only in accordance with a Board policy, if the absence is for a qualifying reason and – most importantly – a quorum of the Board must be physically present to conduct any business, as required by OMA. Contact your legal counsel to discuss how remote participation due to current pandemic circumstances may constitute a statutory qualifying purposes, such as illness or emergency. Check your Board policies (PRESS Policy 2:220) and OMA Section 7 for additional procedures and limitations. Legislative proposals are currently pending to provide more flexibility in this area; but for now, at least four (4) Board members must be physically present to conduct any business.

Can we prohibit the public from physically attending a board or committee meeting?

OMA requires all meetings to be open to the public, and no flexibility has been granted due to the current pandemic or restrictions imposed by Governor’s executive order. Districts can, however, live stream a meeting on the internet and strongly encourage the public to stay home and view it remotely, perhaps even offering a means for public comment via telephonic or other means. We have been in discussions with the Attorney General’s office on this issue, and, again, legislative proposals are currently pending that may allow greater flexibility in this area. With that said, ISBE has balanced the risks for itself and determined to afford public participation in its own meetings by telephone conference, web-conference, and the ISBE audiocast. See Mandatory Statewide Closures Guidance.

ISBE warns, however, that the decision to alter public participation protocols involves a balancing of risks, and should be made in consultation with the Board of Education and legal counsel. We note that districts should consult with legal counsel regarding the potential consequences of a technical OMA violation given their specific meeting agendas. We suggest that, if possible, Boards should adopt emergency rules to address this temporary change in the public participation process to align more closely with the OMA language that public participation be under rules “established and recorded by” the Board.

What legal or policy considerations apply to a communications plan?

Check Board policies (PRESS Policies 2:110, 2:140 and 3:30) for chain of command considerations, as the Board President or Superintendent typically should represent the District to the media, and individual Board members and employees are encouraged to refer questions to them. Also, the Board policy on committees (PRESS Policy 2:150) may establish a Communicable and Chronic Infectious Disease Program Task Force and Review Team that would, if it exists, play a role in decisions concerning removal of exposed staff or students. Communications to the public concerning student and personnel information must be handled with sensitivity to confidentiality requirements (PRESS Policy 5:130). For more information on confidentiality of student information and COVID19, see the Department of Education’s FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (FAQs), March 2020. See FERPA and Coronavirus FAQ.

How do we manage FOIAs during a school closure?

According to our conversations with the Attorney General’s office, school closure days (just like days during spring or winter breaks) could still be viewed by that office as “business days” under FOIA timelines, so districts should plan to continue to process FOIA requests during closures. If an employee designated to receive FOIA requests by email is not working during this time, forward those requests to another email or set up an automatic message redirecting the requester to another email address. Districts should not hesitate to ask requesters to agree in writing to additional extensions of time as needed. Contact legal counsel to discuss individual requests.

CONTRACT AND BUSINESS ISSUES

How do we pay bills if board meetings are canceled?

First, you will need to ensure you can receive mail. If your district and schools do not have drop boxes, consider instituting a mail hold with the USPS or forwarding mail to a P.O. box, arranging for a staff member to pick it up periodically. Due to the volume of mail and multiple delivery locations in most districts, direct communication with your local post office is advised. Second, there are some options for payment of bills in advance of board approval. The School Code is somewhat antiquated in its description of payment approval processes. In some sections it states specific Board approval is required; however, it also expressly authorizes payment of Social Security taxes and recurring bills, such as utility bills, upon certification by the clerk or secretary of the Board, and also allows establishment of a “voucher system” of expenditures, without further definition. Many Boards have established broader authority provisions for payment prior to board approval pursuant to the general voucher system concept (PRESS Policy 4:50). Legal counsel can provide you with a resolution to implement temporary payment processes.

When and how can we cancel student trips and tours?

Pursuant to ISBE’s guidance, all in-person school-sponsored activities scheduled during the statewide school closure are suspended until school resumes. Further, Governor Pritzker has prohibited all large gatherings in Illinois of more than 1,000 people for the next 30 days and recommended postponing all gatherings of 250 people or more amid the outbreak, and the CDC has now recommended that no gatherings of more than 50 people take place for the next eight weeks. See Executive Order-2020-04 and Mass Gatherings Guidance. While both the Governor’s order and the CDC guidance exempt the day-to-day operation of schools, trips take students out of the school context and into the general population. Therefore, it is advisable that field trips be postponed at this time.

Additionally, ISBE is strongly urging all school districts to generally “re-evaluate any planned or anticipated travel,” which would include travel outside the current period of mandated closure. ISBE specifically advises that “trips to any countries with active advisories be postponed to a future date or canceled and replaced with another trip.” Implementation of these directives and advisories regarding cancellation of school-sponsored trips is within the discretion of the Board or superintendent (PRESS Policy 6:240). A district also may be able to effectively cancel non-school-sponsored trips through the group leader under a group cancellation clause or by prohibiting student travel, which may trigger a refund provision for the parents. The specific terms of each tour operator’s contract documents must be reviewed to determine cancellation options and refund parameters. Many tour operators have been expanding their refund policies to allow refund of more money or transferable vouchers or to allow trip rescheduling. We have spoken with the Attorney General regarding options for the small number of tour operators who are refusing refunds or vouchers. In light of the unique situation developing, if you cannot achieve satisfactory refund terms, contact your legal counsel to see if consumer protection laws can be utilized.

Some of the factors to consider in determining whether to cancel a trip that is not school-sponsored or that falls outside the mandated closure window include the following:

  • CDC Interim Guidance for Childcare Programs and K-12 Schools stating that schools may need to postpone or cancel trips that could expose student and staff to potential community spread of COVID-19. The CDC also notes that students returning from travel to areas with community spread of COVID-19 must follow guidance from health officials. See Schools-Childcare Guidance.
  • New restrictions on entry from certain countries in Europe pursuant to the Presidential Travel Ban Proclamation (3-11-20); restriction excludes “legal, permanent” U.S. residents and their relatives, but it is possible you could have students or parents on a trip who could fall outside the exemption. If a trip will be proceeding, it should be confirmed that all travelers will be able to re-enter the country. See Suspension of Entry to Immigrants-Nonimmigrants.
  • ISBE Letter (3-6-20) to school districts strongly urging them to re-evaluate any planned or anticipated travel and encouraging them to exercise an abundance of caution. See ISBE Letter to School Districts re Travel.
  • ISBE School Closure Guidance directing suspension of all in-person school-sponsored activities scheduled during the statewide school closure. See School Closures Guidance.

What if the district or a vendor cannot fully perform under a contract due to the Coronavirus or school closure?

If you think the Coronavirus or related school closure will affect your district’s ability to perform under a contract, consult with your legal counsel to see if a force majeure contract clause or common law concept, such as impracticability or frustration of purpose, will offer relief. If a vendor notifies the district it will not be able to fully perform its contract, review contract terms for payment and termination implications. Also confirm whether the vendor carries supply chain or business interruption coverage that might benefit the district.

Do normal procurement rules continue to apply?

The Governor’s Disaster Proclamation for COVID-19 suspended provisions of the Illinois Procurement Code, which mainly affects state agencies, that might prevent, hinder or delay necessary action in coping with the disaster. The Proclamation also stated that the Governor, if necessary, may take executive action to suspend additional statutes and rules. See Governor’s Disaster Proclamation. However, no additional action regarding school district procurement laws has yet been taken. If you think a school closure will affect a scheduled bid opening, consult with your legal counsel to discuss options under your specific facts and bid document terms, such as extending the bid due date, using bid tender options other than delivery inside the school building, or ensuring someone is available to receive bids at the previously scheduled time for bid submission.

Are we required to pay contractors if they cannot perform services due to school closure?

Maybe. Review key contracts (e.g., custodial, food services, interior construction, and temporary staffing agencies) for impact of school closure on payment obligations and the logistics of access to school premises by the vendor, if needed. Consult with your legal counsel as to possible contract and common law exemptions.

Should contractors adjust their services due to current health advisories?

Maybe. Discuss with vendors that provide cleaning services (custodial, food services, transportation) the need to adhere to cleaning protocols (increasing frequency in high-touch areas) as recommended by public health authorities and the ability to deviate from standard green cleaning products (PRESS Policy 4:150) as needed. See CDC Resources for K-12 Schools and Childcare Programs, Cleaning and Disinfection Recommendations. See Cleaning and Disinfection Recommendations.

Discuss with vendors that provide your district with on-site contract or temporary service providers (e.g. staffing agencies, food services, custodial, transportation) the importance of sick employees staying home and encourage the vendors to develop non-punitive leave policies. Review those contracts for fitness for duty or other provisions allowing requirements for demonstration of health. Be prepared to send home contracted service providers who exhibit symptoms.

Are there security issues with employees working remotely?

Yes. Cybersecurity experts warn that hackers may target employees working remotely during this period. Districts should review with employees the technology security protocols for working remotely. Approval for software and application usage by teaching staff utilizing e-learning instruction should continue to follow district protocols to ensure student data is handled by the technology provider in a secure and lawful manner. The U.S. Department of Education has a Privacy and Technical Assistance Center (PTAC) with related resources, such as this Guidance on Protecting Student Privacy While Using Online Educational Service: Requirements and Best Practices. See Student Privacy and Online Educational Services.

Do we have insurance coverage for any of this?

Maybe. A review of insurance coverage is recommended (PRESS Policy 4:100), to address the following types of questions: Does your district carry trip or event cancellation insurance? What is your cyber breach coverage? Will CGL and/or E&O cover claims for contamination/illness by employees, students, volunteers, and third parties? You may also want to review worker’s compensation claim filing protocols and have them ready to distribute to employees if infection is later suspected to have arisen in the school environment.

FACILITIES ISSUES

What are the issues related to the use and cleaning of our buildings to protect students and staff?

The Governor’s order mandating school closure states that the closure order does not affect the availability of school buildings for the provision of food and other non-educational services, nor does it affect the availability of school buildings to serve as election polling locations. See Executive Order 2020-04. Thus, cleaning protocols continue to be needed.

Many districts have a Green Cleaning policy in place and utilize a specific range of cleaning products (PRESS Policies 4:150 and 4:160). Review whether cleaning products in addition to those currently on hand in your district need to be obtained for recommended cleaning in this situation. Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are typically used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use. These enhanced cleaning protocols may need to continue in part during a school closure if any staff or students will be present; and they will, likely, need to be reinstated in full for a period after schools reopen.

Before closure, during closure (for those present), and for a period after school reopens, it is advisable to try to keep appropriate distances from other students and staff, to the extent possible (e.g. CDC recommendation to space desks 3 feet). Additionally, limit large gatherings. The CDC suggests packaged or meal deliveries to avoid congregating in cafeterias. Review the CDC’s Environmental Cleaning and Disinfection Recommendations. See Cleaning and Disinfection Recommendations. Consider suspending your Facility Use Policy (PRESS Policy 8:20) to prevent public use of your facilities, and consider cancelling all established public use of your facilities. Check your policies and any applicable facilities use agreements.

Do we need to keep a school open as a designated polling place?

Yes. The Governor’s order on school closure states that the closure order does not affect the availability of school buildings to serve as election polling locations. See Executive Order 2020-04. Due to the logistics in rescheduling a polling place for which notice has been published to voters, we think it unlikely that a polling location could be changed at this point. As of this date, election authorities are proceeding with elections.

The CDC has published interim Recommendations for Election Polling Locations. See Election Polling Locations. The guidance suggests that polling stations try to reduce crowd size by encouraging early voting, discouraging unnecessary people from accompanying poll workers, and spacing voters far apart while voting and waiting to vote. The guidance also suggests that everyone should wash and/or sanitize their hands, and that poll workers frequently clean polling equipment. We suggest districts reach out to their county election authorities to confirm the authorities will be following CDC protocols.

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