The Open Meetings Act does not contemplate an exception for exigent circumstances like the ones we have now. I am not aware of any movement in the General Assembly to address this issue legislatively. That said, I don’t think schools are entirely without options. As for board members themselves, it is a fairly common practice for a board member to call into a meeting, and I do not believe a school will have any problem so long as the board member can hear everything that is said, and everyone in the meeting can hear him/her. Could a school expand on this so that only one person shows up and all the board members participate in this way? I think this is pushing the concept, and I do not believe a school should make a regular practice of it, but under these extreme circumstances, it would likely be upheld.
What about a virtual meeting where no one shows up? I have in mind something like putting up a notice that the meeting will be conducted by conference call and anyone who wants to can dial in and listen. There is no guidance that I am aware of specifically addressing this. But the statute defines “meeting” as follows: “Meeting’ means any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” C.R.S. § 24-6-402(1)(b). The statute thus seems to assume that a meeting can be electronic or telephonic so long as it is open to the public. Therefore, I believe that a conference call meeting such as the one I described would pass statutory muster. Even if that were not the case, the penalty for a meeting that violates the statute is that the actions taken at the meeting are void. But those actions can later be ratified at a compliant meeting. This ability to fix any problem that might arise if a board is second guessed and deemed to have gotten it wrong, mitigates the risk involved in the decision. In summary, I believe holding a conference bridge meeting in which all participants can hear each other at all times would probably be legal.
Additional Tips for Board Meetings During a Pandemic
If you do full electronic meetings either defer any executive session, or conduct it with either (1) a separate call in number for board only, or (2) a monitored call in number where you can identify any potential eavesdroppers and get them off the line. Coming back from executive session is a bit tricky, but putting a session where action is not anticipated at the end of the meeting, or a session where action is anticipated at the very beginning, with an estimated public call-in time (and separate number) can work.
Also, most charter bylaws permit conference call meetings, but you may want to double-check your articles and bylaws to be comfortable that no one will challenge you from that angle.