By: Stuart L. Whitt
On April 24, 2020, Whitt Law posted “Planning for the Future Series: Open Meetings During the COVID-19 Pandemic,” written by Stuart L. Whitt, wherein he discussed Governor JB Pritzker’s Executive Order 2020-07, specifically as it relates to Section 2.01 and Section 7 of the Open Meetings Act (the “Act”).
On June 15, 2020, Governor Pritzker signed into law Public Act 101-0640 (formerly Senate Bill 2135), amending Sections 2.01 and 7 of the Act and codifying the provisions of the prior Executive Order.
Public Act added subsection (e) to Section 7 to authorize public bodies to hold open and closed meetings by audio or video conference, without the physical presence of a quorum, so long as the following conditions are met:
1. either the Governor or the Director of the Illinois Department of Public Health has issued a disaster declaration related to public health concerns because of a disaster, as that term is defined in Section 4 of the Illinois Emergency Management Agency Act, and all or part of the jurisdiction of the public body is covered by the disaster area;
2. the head of the public body (as defined in Section 2(e) of the Freedom of Information Act) determines that an in-person meeting or a meeting conducted under the Act is not practical or prudent because of the disaster;
3. all members of the public body participating in the meeting, wherever their physical location, are verified and can hear one another, as well as all discussion and testimony;
4. for open meetings, members of the public who are present at the regular meeting location of the public body can hear all discussion and testimony and all votes of members of the public body, unless attendance at the regular meeting location is not feasible due to the disaster, in which case the public body must make alternate arrangements and provide notice of those alternate arrangements pursuant to Section 7 in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes (e.g. offering a telephone number or a web-based link to the meeting);
5. at least one member of the public body, chief legal counsel, or chief administrative officer is physically present at the regular meeting location, unless unfeasible due to the disaster, including the issued disaster declaration; and
6. all votes are conducted by roll call, so each member’s vote on each issue can be identified and recorded.
Subsection (e) to Section 7 further provides that:
7. Except in the event of a bona fide emergency, 48 hours’ notice of a meeting held pursuant to Section 7(e) shall be given to all members of the public body, shall be posted on the website of the public body, and shall be provided to any news media that has requested notice of meetings pursuant to Section 2.01(a) of the Act. If the public body declares a bona fide emergency:
A. notice shall be given pursuant to Section 2.02(a) of the Act, and the presiding officer shall state the nature of the emergency at the beginning of the meeting; and
B. the public body must comply with the verbatim recording requirements of Section 2.06 of the Act.
8. Each member of the public body participating in a meeting by audio or video conference for a meeting held pursuant to Section 7(e) is considered present for purposes of determining a quorum and participating in all proceedings.
9. In addition to the requirements for open meetings set forth in Section 2.06, public bodies holding (audio or video) meetings under Section 7(e) must also keep a verbatim record of all meetings in the form of an audio or video recording. These verbatim records must be made available to the public under, and are otherwise subject to, the provisions of Section 2.06 of the Act. [Emphasis added.]
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 Open Meetings Act to balance the interests of open government, and the health of everyone involved.
The attorneys at Whitt Law LLC are well-versed in the Open Meetings Act and are actively monitoring State action in response to COVID-19. Please contact Whitt Law Partner Stuart Whitt (swhitt@whittlaw.com) if you have questions regarding these developments or for assistance complying with the Act.
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