By: Stuart L. Whitt
Open Meetings Act
Illinois policy is that public bodies exist to aid in the conduct of the people’s business and that people have a right to be informed as to the conduct of that business. In furtherance of that policy, the Open Meetings Act (“OMA”) requires all meetings of public bodies, with very limited exceptions, be open to the public. The OMA mandates that a majority of a quorum be physically present at the location of the meeting. So long as a majority of a quorum is physically present, the OMA permits members of the public body to attend by means other than physical presence (i.e. by video or audio conference) for any one of three reasons: (1) personal illness or disability; (2) employment demands or those of the public body; and (3) a family or other emergency. Section 2.06(g) of the OMA provides that “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”
Executive Order 2020-07
With the COVID-19 pandemic, on March 9, 2020, Governor Pritzker issued his Gubernatorial Disaster Proclamation declaring all Illinois counties a “disaster area.” On March 16, 2020, the Governor issued Executive Order 2020-07 addressing a number of things, including suspending the requirement in Section 2.01 of the OMA that “members of a public body must be physically present,” and suspending Section 7’s limitation as to when remote participation is permitted in meetings of public bodies. The Governor encouraged public bodies to postpone consideration of public business, where possible. In those instances when a meeting is necessary, the Governor encouraged public bodies to provide video, audio, and/or telephonic access to the public so that they could monitor those meetings, and update their websites to keep the pubic fully apprised of any modifications to their meeting schedules or formats.
Subsequent Legal Challenges
The Attorney General’s Public Access Counselor (“PAC”) has released a guidance document and issued non-binding opinions that shed light on its position regarding Executive Order 2020-07. Two such non-binding opinions respond to individuals who filed requests for review with the PAC challenging public meetings held after Executive Order 2020-07.
On March 18, a public body held a meeting where only the chairman was physically present, while six other board members attended via teleconference. An individual challenged that meeting with the PAC. The PAC found that, under normal circumstances, all six board members would not be permitted to attend remotely. The PAC noted, however, that the meeting took place under special circumstances necessitated by the COVID-19 pandemic. Executive Order 2020-07 was in effect at the time and the PAC found that it permitted the public body to have less than a quorum physically present and that the six members who participated telephonically were permitted to do so.
On March 23, a public body posted notice of a “Virtual Meeting” and its agenda, which provided an internet link that the public could use to listen to the meeting. The agenda advised that public comments were to be submitted two hours before the meeting and provided an email address for that purpose. An individual filed a request for review with the PAC, claiming that restricting public comment to e-mail submissions and not providing members of the public with an opportunity to verbally address the board violated Section 2.06(g) of the Act. The PAC noted the Governor’s Executive Order 2020-10 issued on March 20 directing that all Illinoisans “stay at home“ except as allowed in the Order and observed that no provision of the Act sets out guidelines concerning public comment during public health emergencies. The PAC was “unable to conclude that the board unreasonably restricted public comment under the exigent circumstances that existed at that time.” Section 2.06(g) does not require public bodies to answer questions or otherwise interact with the public, so permitting pubic comment via e-mail was sufficient.
Additionally, on April 13, the Circuit Court of Will County issued its decision in Evans, et al. v. City of Joliet denying a petition for a temporary restraining order to prohibit the City of Joliet from proceeding with a vote on a controversial land annexation during a meeting held under the relaxed standards of Executive Order 2020-07. The plaintiff there claimed that the vote of the City Council was not “necessary” and could have been postponed. That claim failed because the court was unwilling to tell the City Council “what is, and is not, important to Joliet.” That was for the elected officials to decide. The plaintiff also claimed that the City made no effort to make the meeting accessible to people lacking cable TV or internet access, but the court found that to be a “relatively small segment of the population, and the law requires only a reasonable opportunity to participate.” While the court was critical of what it described as a “shady” meeting and “a disservice to the public.… that did not make it illegal.”
The best course of action for each public body will vary in each case – depending upon the unique characteristics of its members and community, the significance of matters pending before it, and the options available for physical and remote participation by members and the public. As the COVID-19 pandemic continues to develop, public bodies should work with legal counsel to determine the best way to comply with both the provisions and policy of the OMA, as well as Executive Order 2020-07, to balance the interests of open government, and the health of everyone involved.
The attorneys at Whitt Law LLC are well-versed in the OMA’s provisions and are actively monitoring State action in response to COVID-19. Please contact Whitt Law Partner Stuart Whitt (firstname.lastname@example.org) if you have questions regarding these developments or for assistance complying with the OMA and Executive Order 2020-07.
Whitt Law knows that school districts throughout the nation are moving from the rapid (yet deliberate) triage decision-making necessitated by COVID-19 to future-oriented planning. This guidance document is the second in a series intended to help school boards and administrators work through the types of questions they should be asking as they prepare for re-opening school buildings. For more information about the Series, or for PDF copies of any entries, please contact Whitt Law Senior Attorney Brittany Flaherty Theis (email@example.com). The Introduction to the Series can be found here.
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